TOPIC 1: NATURE AND CLASSIFICATION OF LAW

Every society, whether large or small, powerful or weak, has created for itself a framework of
principles within which to develop. Thus in every society, there is the idea that law is an integral
part in ensuring that there is just and stable society.
Law gives effect to the standards of conduct in society and binds the members of community
together in adherence to the recognised values and standards.

The study of law is referred to as Jurisprudence.

The term ‘ law’ is ambiguous and has no assigned meaning. Its definition may relate to any of
the following:
i. Laws of physical sciences e.g. the law of gravity,
ii. Social sciences laws e.g. the economics law of demand and supply,
iii. Laws of morality (moral laws) e.g. respect for the elderly,
iv. Laws of religion e.g. the 10 commandments,
v. State Law i.e. Law made by the machinery of Government.

Machinery of Government comprises of Legislature, Executive and Judiciary.

This particular subject shall concern with state law and not any other kind of law.

Though different writers have attempted to define the term Law, no generally accepted definition
has been given. Among the definitions of state law are the following:

According to Hart, Law is a coercive instrument for regulating social behaviour. Law has been
defined as a command backed by sanctions. These two explanations of the term law presuppose
the existence of a sovereign, which prescribes or formulates the commands and enforces
sanctions, which is not necessarily the case.

Salmond defines law as ‘ A body of principles recognised and applied by the state in the
administration of justice.

Woodrow Wilson has defined Law as “ That portion of established thoughts and habits which
have gained distinct and formal recognition in the shape of uniform laws backed by authority of
and power backed by authority of and power of government.

In summary therefore, Law is a dynamic aggregate of conglomeration of rules applicable to a

certain community, business entity or sovereign state enforced by the courts of law at a
given time.
NOTABLE POINTS FROM THE DEFINITION OF LAW
i. A set of rules
ii. Guidance of human conduct
iii. Such rules are binding and compulsory
iv. They must be applicable to a certain/ specific persons or community or a sovereign state
v. Are dynamic i.e. law is not a static phenomenon, the rules of law keep on changing from
time to time as the needs of the society may arise.
vi. Are made and enforced by the machinery of Government
vii. Their breach results into legal punishment by government
viii. They are codified i.e. the laws of Kenya are in writing except customary law.

Rules of law originate from Acts of Parliament, customary and religious practices of the people.
They may also be borrowed from other countries.

PURPOSES/ FUNCTIONS OF LAW

 Rules of law facilitate administration of Justice. It is an instrument used by human
beings to achieve justice.
 Law assists in the maintenance of peace and order. Law promotes peace and order to
avoid anarchy.
 Law promotes good governance
 Law is a standard setting and control mechanism
 Provision of legal remedies.
 Protection of fundamental rights, freedoms and duties.
 To regulate business and social transactions in the society.

TYPES AND CLASSIFICATION OF LAW

Rules of Law may be classified as:
 Written and Unwritten
 National and International
 Public and Private
 Criminal and Civil
 Substantive and Procedural law

1. Written and Unwritten

Written law: These are rules of law that have been reduced in to a written form i.e. they are
codified. They are embodied in a formal document .e.g. The Constitution of Kenya Laws made
by Parliament (statutes). Such laws prevail over unwritten law.

Unwritten law: These are rules of law that have not been reduced into written form. They are
not embodied in any single document. For example: African Customary Law, Islamic Law,
Hindu Law, Common Law, and Equity. Their existence must be proved.
CODIFICATION AND CONSOLIDATION OF LAW

CODIFICATION
This is the collection of new law and arranging it systematically into CODES. It involves
collection, compilation systematisation and promulgation of the body of law in a coherent form
by an authority in a state complimented to do so.

Conditions For Codification

a. Existence of legal institutions which have become completely mature
b. The wildness and uncertainty and the archaic character of the existing law
c. The development of an efficient organ of legislation
d. The need for one uniform law

Merits of Codification
i. Certainty The law no longer remains vague and uncertain
ii. Simplicity The law becomes simple and accessible to everyone. By a code anyone can
know the law on a particular point. This enables the citizens to know of their rights and
duties and greatly helps in the administration of justice.
iii. Logical arrangementsThe law is logically arranged in a coherent form, there is little
chance of conflict of inconsistency arising among the different provisions of the law.
Thus the law is harmonised and systematised in a code.
iv. Stability Makes people have confidence in the law
v. Unity Codified law has uniform and wider application. Persons who are governed by the
same law course of time develop affinity amongst themselves as they come close to each
other, thus bringing integrity and
vi. Planned development

Consolidation of Law

2. National and International

National (Municipal law)
These are rules of law operating within the boundaries of a sovereign state. It regulates the
relation between citizens and between citizens and the state. It is based on Acts of Parliament,
Customary and Religious practices of the people.

International Law
This is the law which governs relations and disputes between sovereign states.
Matters covered under international law include:
 Treaties
 Convention (general customs)
 Trade
  Recognition of new states
 Admiralty matters
 Border conflicts
 Economic crimes
 Crimes against humanity including genocide, piracy, international terrorism e.t.c.
Such matters will be handled by the International Court of Justice (ICJ) which is a branch of the
United Nations.
The Headquarters of this court is at The Hague in Netherland, but it can be set up within any
sovereign state where an international dispute has arisen.
It is divided into:
-Public International Law:
It is based on international agreements of treaties and customary practices of states and general
principles which regulate the relations of those states. This law is based on treaties, conventions
and laws of war.

-Private International Law:

This branch mainly concerns with determining which National law governs a case in which there
is a foreign element and the infringement of the rights of a citizen.

3. Public and Private

Public Law:
This is the branch of law that concerns with the relationship between the state and the citizenry.
The state is therefore an interested party in all matters touching on public law because the
primary responsibility of the modern state is to safeguard public welfare.
Public law is further divided into the following categories:

1. Administrative Law: This relates with the functioning of the executive arm of
government.
This branch concerns with the relationship and responsibilities of the officers within the
executive arm of government.
It details the main functions of the executive

2. Constitutional Law: I t is superior to administrative law because it concerns the three

branches of government.
It identifies the relationship and responsibility of the officers within the three branches of
government and shows how they should relate with the individual civilian.
It also provides the constitutional and fundamental rights and freedoms of the individual.
Disputes and grievances arising between an individual civilian and the government shall be
addressed by the court basing on provisions of constitutional law.

3. Criminal Law: This is the main branch of public law and it concerns criminal wrongs.
Private Law
This consists of those fields or branches of law in which the state has no direct interest as the
sovereign. The state only provides the mechanisms i.e. courts for the citizens to settled their
differences.

4. Criminal and Civil

Criminal law is the law of crimes. A crime has been defined as an act or omission, committed or
omitted in violation of public law. E.g. murder, manslaughter, robbery rape stealing e.t.c
All crimes or offences in Kenya are created by Parliament through statutes. Suspects are arrested
by the state through the police.

Offences under criminal law shall be prosecuted by the State for and on behalf of the aggrieved
party.
Parties in a criminal dispute shall legally be known as the Prosecution versus the Defence.
The prosecution side shall be split into two parts:
 The State Representative
 The Aggrieved Party

The State Representative will either be the Attorney General (who remains the principal legal
advisor of the Government and Chief Prosecutor of all criminal offences in Kenya) who shall be
assisted by the Deputy Director of Public Prosecutions or any other Prosecutor (who in most
cases will be a senior police officer)
This representative takes over the criminal on behalf of the aggrieved party by acting as his
lawyer and leads such aggrieved through the entire court process and especially the presentation
of evidence.

The Aggrieved Party is simply the complainant and his obligation is simply to appear in court
as the main prosecution witness.
However, there are instances where an aggrieved party may lead himself in prosecution of his
matter in a criminal dispute but this will only be if such person proves to the court that upon
presenting his complaint to the police, the police refused/ failed to take the matter and
investigate, and charge the suspect of the offence. The aggrieved party therefore requests the
court to grant him permission to file Private Prosecution.
The Defence side shall comprise of the alleged wrongdoer (accused person). Such person
remains guilty until proved guilty.
He retains the right to present his defence in person or through a lawyer of choice.

When charged with a particular offence the suspect becomes an accused, hence criminal cases
are styled as R vs. Accused. In this case R represents the Republic or State. (In case of an appeal
it is phrased as Appellant vs. R) It is the duty of the prosecution to prove its case against the
accused. Thus the burden of proof rests on the prosecution.
The standard of proof in criminal cases is beyond any reasonable doubt. In the event of any
reasonable doubt, the accused is acquitted i.e. set free.
The court must be satisfied that the accused committed the offence as charged. If the prosecution
discharges the burden of proof, the accused is convicted and punished.
The punishment could take any of the following forms:

i. Capital punishment
This is also known as execution and is simply the death sentence. It is the most severe form of
punishment under the law and is awarded for the commission of capital offences.
The capital offences recognised under the law of Kenya are:
 Murder
 Robbery with violence
 Treason
This form of punishment has lost popularity since it runs against the religious right to life. It is
also unfortunate that it has not achieved its main objective of discouraging persons from
committing capital offences.

ii. Imprisonment term

This may be for life, or imprisonment for any other specified term with or without hard labour.

iii. Corporal punishment (abolished)

iv. Extra-Mural-Punishment (Community service)

This is a non-custodian sentence whereby the convict is ordered to perform beneficial
community service for a specified period.

v. Fine
This is payment of money for commission of an offence and the money collected forms part of
State Revenue.

vi. Conditional Discharge

The accused is released by the court but ordered to report to a specified government office for a
specified period or perform any other task

vii. Suspended sentence

This is also non-custodian jail term whereupon the convicted person is released by the court but
expected to be of good behaviour during the pronounced term failure to which the suspension
shall be lifted and the convict shall be jailed for the pronounced period.

viii. Forfeiture
Property found in the convict’ s possession is confiscated by the state, especially where it was
illegal or dangerous or the accused person did not follow the correct procedure to acquire it or
such property was used to commit the offence.

ix. Probation
This is where the convicted person is ordered to report to a specified probation officer for a given
period. The probation officer is expected to monitor the convict’ s behaviour and report to the
court whether the convict has reformed.
It is also given to those persons who have already served part of their jail terms but later given an
early release from jail due to good behaviour.

x. Prohibitories (Restraining Order)

This will arise where the court a person to refrain from visiting specified persons or facilities for
a given period.

The Primary aim of punishment in criminal law is Retribution and Deterrence i.e. the state
aims to avenge for the aggrieved party while at the same time the punishment administered is
expected to discourage right minded persons from committing similar offences in future.
Criminal Punishment is therefore very severe.

The Secondary aim of criminal punishment is Reformation. Since the state is eager to reform
its citizens this is the main aim of criminal punishment especially in minor offences and
punishment is mostly by way of fines.

The purpose of criminal law is:

 To ascertain whether or not a crime has been committed,
 To punish the crime where one has been convicted,

Civil Law
Civil law is concerned with violations of private rights of individuals. It is the branch of law that
deals with the relationships between persons.
If a person’ s private rights are violated, the person has a cause of action. Causes of action are
recognised by the statutes and common law.
The state has no direct in such disputes and the civilian complaining will have the obligation to
organise for the filing of the claim either himself or through an advocate.

Parties in a civil dispute are legally referred to as Plaintiff and Defendant.

The Plaintiff is the aggrieved party or complainant, while the Defendant is the alleged
wrongdoer. Each party shall retain the rights to present his claim in person or through an
appointed advocate.
The standard of proof in civil cases is that the plaintiff is required to prove his case on a balance
of probabilities.

The parties in a civil case may legally compromise and withdraw their consent (discharge) before
the court.
The aim of punishment in civil cases is Restitution and Compensation i.e. the court aims to
restore or return the offended party to the position they would have been at had the wrong not
been committed.
Civil punishment is not as severe as criminal punishment and it will be in most cases through
financial compensation known as damages.
Other forms of civil punishments include
 Rescission (withdrawal)
 Injunction
 Specific Performance
 Quantum Meruit
 Civil Jail Attachment and sale of property

Civil Law covers many branches including:

 Law of contract
This is the branch of law that deals with promises and agreements, determines the essentials of
valid agreements, and what the legal consequences of a promise are.

 Law of Tort
A tort is a civil wrong against a person or his property. The remedy for tort at common law is an
action for unliquidated damages.

 Law of Trust

 Law of Agency

 Law of Succession
 Law of Property.

 Hire-purchase Law
 Law of Negotiable Instruments
 Law of Partnership
 Law of Sale of Goods

Difference between criminal and civil law

Criminal Law Civil Law

1.Wrong committed against the state 1. Wrong committed against an individual

2.Parties are the prosecution and the 2.Parties are the plaintiff and defendant
accused

3.Since a crime is a public wrong, the action 3.This being a private wrong, the parties are
cannot be compromised by the parties free to compromise an action and the plaintiff
may agree to have an out of court settlement
with the defendant
4.The burden of proof is beyond reasonable 4.The burden of proof is on a balance of
doubt. Any slight doubt must be resolved in probabilities i.e. it is more probable than not
favour of the accused that the plaintiff’ s case merits success
compared to that of the defendant
5.Punishment is usually by imprisonment or 5.A defendant who has committed a civil
fine or death penalty in the case of capital wrong is usually ordered to pay the plaintiff
punishment damages i.e. (monetary compensation) or some
other civil remedy may be granted

5. Substantive and Procedural law

Substantive Law
This is the branch of law that is concerned with the rules themselves as opposed the procedure on
how to apply them. It defines the rights and duties of parties and provides remedies when those
rights are violated.
It defines offences and prescribes punishment e.g. The Penal Code Cap 63
This covers both civil and criminal branches of law.

Procedural Law
This branch of law provides the regulations governing legal proceedings in both civil and
criminal branches of law.
The regulations outline the procedures to be followed from the moment a complaint is launched
with the relevant authorities right through the moment the matter is presented to court and
judgement is delivered.
In Criminal Disputes, the procedure to be followed is laid out in the Criminal Procedure Code
and Evidence Act.
This includes lodging a formal complaint to the police, the mode of recording a police statement
filing preliminary reports, arraigning accused in court, presenting evidence, e.t.c.
In Civil Disputes the procedure to be followed is laid out in the Civil Procedure Act, Evidence
Act and Rules of Court.
This includes the mode of drawing a plaint (statement of allegations made by a complainant)
statement of defence summons e.t.c
Where a person fails to respect the laid down procedures, he risks losing his claim on legal
technicality
ADVANTAGES OF LAW
1. Brings uniformity and consistency in the administration of justice
2. As the law is known to the citizens, it enables them to regulate their conduct in
accordance with it.
3. As the rules are fixed, it enables the Judges in applying the law uniformly.
4. Ensure impartiality and uniformity because justice is done according to the fixed laws
and judges cannot give judgments according to their own motives and views.
5. The rules of law represent the collective wisdom of the society/community, therefore in
following them, there are little chances of going wrong.
6. It brings consistency in the administration and systematic development of law
7. Ensures peaceful co-existence of men and women and members of various communities
as one big community.
8. Serves as a measure of control in any given community.
9. Maintains order and tranquillity in the in the society.
10. Law provides a practical and comprehensive framework of legal rules and principles to
assist members of the society in various aspects of life. E.g. commercial affairs, social
aspects e.t.c.

DISASVANTAGES
1. Rigidity
The same rules are applied to all the cases of similar nature and sometimes causes hardship and
injustice.
2. Law tends to be conservative
It does not keep pace with the changing conditions and so it is not in accordance with the new
ideas and principles of justice
3. Formality
Greater importance is attached to the form rather that the substance i.e. the letter of the law or
formalities are highly considered rather than the object of the law.
4. Complexity
It no longer remains easy to understand, because

LAW AND MORALITY

The issue of concern here is in the relation between law and morals.
Two questions warrant address:-
1. Has the development of law been influence by moral?
2. Must some reference to morality enter into an adequate definition of law or legal
system?
Morality may be defined as a set of beliefs, values, principals and standards of behaviour found
in social groups.
A debate has been ranging over time as to whether law and morals are related. The answer to this
query must be in the affirmative. This is so because morality has determined the course of law,
sometimes covertly and slowly through the judicial process and at times openly through
legislation.
For instance, in the case of Shaw vs. DPP the judge observed inter-alia that courts should
function as the general censer and graduation of public morals.

Morality is however connected to law in the following ways:-

i. The suppression of vices is as much as the law’ s business as the suppression of
subversive activities,
ii. Conduct under which a person may be held liable in law may be seen as based on moral
idea of “ blame” or “ fault”
iii. Some of the underlying principles in liability in law are however rooted in conceptions of
morality and the way in which these moral principles are incorporated into the law may
best appreciate by means of the criminal laws.
iv. Both law and morality have their origins in mysterious relations through religious
visionaries and are firmly rooted in social conditions and practices.

It’ s however worthy of note that there are certain instances where law and morality part
ways. This is founded in the belief that there must be a realm of morality and immorality
which is not the law’ s business.

Distinction between law and morality.

LAW MORALITY

1. These are rules made and enforced
by the machinery of government.
2. Concerns the outward action of man
and rarely touches his internal
motives.
3. Definite and precise and in most
cases appears in written form.
4. Uniform and applies to large area
within the state.
5. Force and the fear of punishment are
the main reasons for obedience of
law.
6. Changes faster since it must
consistently adapt to social-
economic political changes.
1. The rules made by man concerning
the preferred upright behaviour in
human activity
2. Concerns both outward action of
man and internal motives.
3. Vague and indefinite.
4 Irregular and differs from community
to community.
5.Conscience is the main reason for
being morally upright
6. Does not change frequently and
many moral rules have been in
existence for a long period of time.

ETHICS AND DISCIPLINE OF CERTIFIED PUBLIC ACCOUNTANTS

 The Accountants Act (cap 531) is the applicable law

However the Institute of Certified Public Accountants has issued a Guide to Professional Ethics
relating to ethics and discipline to be followed by Certified Public Accountants in Kenya. These
are explained as under:
 TOPIC 2

SOURCES OF KENYA LAW

A source of law is the origin of the rule, which constitutes a law, or legal principle.

The phrase ‘ Sources of Law’ is used in different conceptions by philosophers and

legal scholars. Some of the meanings attributed to the expression ‘ Sources of Law’
include;

1.Social forces that direct law: i.e the sociological factors which created an impetus for
forming particular rules or regulations of law within a given jurisdiction e.g. Cultural,
Morality, Religion,

Science and Technology, Economic or Political environment.Law making

Entity/Institutions within a given society e.g. parliament
 i. Territorial / Geographical origin of the principles, rules or laws in a given
society

The phrase `Sources of Kenya law' therefore means the origin of the legal rules which
constitute the laws of Kenya.

The various sources of law of Kenya are identified by the Constitution, the Judicature
Act, Kadhi’ s Court Act, the Hindu Marriage and Divorce Act and the Hindu
Succession Act.

1.1 The Judicature Act Cap 8, Laws of Kenya

The sources of Kenya law are specified in the Judicature Act 1967, S.3(1) of which states
that the jurisdiction of the High Court, the Court of Appeal and all subordinate courts
shall be exercised in accordance with:

(i) The constitution;

(ii) Subject thereto, "all other written laws", (including certain Acts of Parliament
of the United Kingdom which are cited in Part I of the Schedule to the Act),
and

(iii) Subject thereto and so far as the (aforesaid) written laws do not
extend or apply:

(a) The substance of the common law;

(b) The doctrines of equity, and

(c) Statutes of general application in force in England on 12th August

1897.
Section 3 (2) States that "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 or affected by it, so far as it is applicable and is not repugnant to
justice and morality or inconsistent with any written law".

1.2 The Kadhi's Courts Act 1967

Section 5 of the Kadhi's Courts Act provides that a Kadhi's Court shall have and exercise
jurisdiction in matters involving the determination of Muslim Law relating to personal
status, marriage, divorce or inheritance in proceedings in which all the parties profess the
Muslim religion. This provision constitutes Muslim Law a source of Kenya law for the
specified purposes.

1.3 The Hindu Marriage and Divorce Act 1960

Section 5 (1) provides that a marriage between Hindus may be solemnized in

accordance with the customary rites and ceremonies of either party thereto.

The Legal Pyramid

The sources of Kenya law mentioned above may be summarised with the aid of
the following diagram or "legal pyramid":-
The sources of Kenya law consist of

(a) Written laws, and

(b) Unwritten laws.

1. The unwritten laws are derived, generally speaking, from the customs of the
ethnic groups which constitute Kenya's indigenous population and the rules or
rites of Islam and Hinduism.
There is nothing strange or peculiar about this situation. In England, for example, the
general customs of the English people constitute a major source of English law which is
known as the common law. The principles of Christianity have also made some
contribution to the development of English law, especially family law.

2. A written law is defined by the Interpretation and General provisions Act

as:
 (a) An Act of Parliament for the time being in force (other than the
Constitution);

(b) An applied law; or

(c) Any subsidiary legislation for the time being in force.

APPLIED LAWS

Section 2 of the Interpretation and General Provisions Act defines an "applied law" as:

(a) An Act of the legislature of another country or an order in council of the United
Kingdom; or

(b) Subsidiary legislation made under any of the foregoing, which is for the time being in
force in Kenya.

WRITTEN SOURCES OF KENYA LAW:

i. The Constitution,
ii. Legislation,
iii. Statutes of General Application in force in England as at 12th August 1897
iv. Subsidiary Legislation,
v. Certain Acts of Parliament of U.K and One Act of Parliament of India

1. THE CONSTITUTION
A Constitution is a legal instrument which represents the legal framework of all the laws
within a State and it is upon this framework that all existing laws of that State acquire
their force and legal validity.

A Constitution lays down the main responsibilities and functions of government and
shows the relationship between the government and the citizens.
According to Lord Bryce, “ the Constitution consists of those rules or laws which
determine the form of Government and the respective rights and duties of the
Government towards the citizens and of the citizens towards the Government”

A Constitution may be written or unwritten.

It is written when most of the fundamental principles and the laws of the land are
included in written form in a formal document.

An unwritten constitution is that which most of the fundamental principles and laws of
the land are not given in written form in a formal document e.g. the British Constitution.

Its sources are found in statute law, subsidiary legislation, conventions of the constitution
and even certain text books.

It may also be flexible as well as rigid. It becomes rigid when its amendment process is
technical and time consuming.

The Kenya Constitution is both written and rigid.

SUPREMACY OF THE CONSTITUTION

The doctrine supremacy of the constitution emphasises the Constitution of a sovereign

state shall remain the most authoritative legal instrument in the land.

The Constitution is supreme and takes precedence over all other forms of law.

It is that source of law from which all other laws derive their validity.
The constitution is or is supposed to be the product of the exercise of the constituent
power inherent in the people and it is from it that all legislative Acts derive their
authority.

Article 2 of the Constitution

Article 3

Articles 255-257 provides for the amendment procedures of the constitution:

The Kenyan Constitution is regarded supreme due to the following:-

(i) Upon its enactment in 1963 and subsequent amendment in 1964 it transformed
that which was simply a country into the Republic of Kenya and in so doing, it
confirmed Kenya’ s sovereignty and international identity.
(ii) It established the government and formed the 3 main branches i.e. legislature,
executive and judiciary.
(iii)It established the highest office in the land i.e. Office of the President and gave
the occupant powers of head of state
(iv)It identifies the primary functions of each one of the organs of government and
also provides the mode of appointment of chief officers into these branches.
(v) It provides the fundamental rights and freedoms of the individual (the Bills of
Rights) and guarantees their protection.
(vi)It provides the procedure to be followed in case of its amendments and
empowers parliament with the responsibility to oversee and enact such
amendments
(vii) The Constitution has the force of law throughout the entire the state and
any law which turns out to be inconsistent with it shall be deemed to be null
and void to the extent of such inconsistency.

A study of the constitution entails consideration of the following:

 a. Historical circumstances in which the constitution came to be adopted.
b. Political and philosophical values underlined in the constitution i.e. liberal
democracy, the preamble e.t.c.
c. The position of authority enjoyed by the Constitution within the legal order i.e.
supremacy of the constitution
d. Individual provisions of the Constitution and their implications.
e. Amendments and interpretation for practical operations of the constitution.

2. LEGISLATION (STATUTE LAW)

By legislation is meant an Act of Parliament or statute. This is law made by Parliament
directly in exercise of legislative power conferred upon it by the constitution.
Legislation may be direct or indirect.

It is direct where the law making body is Parliament. This is because Parliament derives
its law making powers directly from the Constitution.

Indirect legislation is where another body other than Parliament makes law on the basis
of power derived from a statute e.g. By-laws made by the local authorities.

Article 94 of the Kenya Constitution vests the Legislative powers of the Republic in
Parliament which consists of the National Assembly and the Senate.

Parliament as body is afforded few special protections and its most significant powers,
are as follows

1. Parliament is competent to legislate on any subject whatsoever

2. Once Parliament has made primary (as opposed to delegated) legislation, no court
or other body can quash that legislation apart from Parliament itself
3. Each Parliament is sovereign and may repeal the legislation of a previous
Parliament but no Parliament may bind a future Parliament.

STAGES IN LEGISLATION

Article 109 of the Constitution states that “ the legislative power of Parliament is
exercisable by Bills passed by Parliament and assented to by the President.”

Bills

An Act of Parliament begins as a Bill, which is the draft of law that Parliament intends to
make.
Types of Bills

A Bill may be classified according to the

The sponsor or,

The target

Bills classified according to the sponsor;

(i) A Government Bill, This is a proposal presented to Parliament by the

Government (by a particular minister) with a view to its becoming a law if
approved by Parliament.

(ii) A Private Members' Bill, This is a proposal presented to Parliament by

some members, in a private capacity and not on behalf of the Government.
Bills in this category will not receive the services of the A G and it will be
upon the sponsor to organise for the legal drafting of the bill.

Bills classified according to the target:-

(a) A Bill, whether a Government Bill or a Private Members' Bill, is a Public Bill
if it seeks to alter the law throughout Kenya. An example is the abortive
Marriage Bill, 1979, whose aim was to introduce a uniform marriage law for
all Kenyans irrespective of their racial, religious or ethnic differences.

(b) A Private Bill This is selective in nature since it does not seek to alter the
general law but rather to confer a benefit or special local powers to a
particular group of persons, geographical or administrative location,
business community corporate body e.t.c. An example is where a local
authority such as a Municipal Council requires power to purchase land
compulsorily, the Company’ s Act e.t.c.
 NOTE: CONSTITUTIONAL BILLS

These do not form a different category but concerns the amending, repealing, or
otherwise altering the framework of the existing Constitution.

In order for such bills to be passed in to law, they must be supported by at least two
thirds majority vote of 65% of all the Mps voting in the 2nd and 3rd readings.

Any other bill which is not a constitutional bill automatically becomes an ordinary bill
and such bill will only require a simple majority vote in its favour in the 2nd and 3rd
readings.

Money Bills

Special Bills

PROCEDURE FOR ENACTMENT OF LAWS

The procedure to be followed in Parliament in order to enact Law is governed by

Constitution and Orders 94-125 of National Assembly Standing Orders.

A Government Bill and a Private Members' Bill follow the same procedure pursuant to
Order 116 which provides that, except as otherwise provided in Part XVI of the Orders.

The Standing Orders relating to Public Bills shall apply in respect of Private Bills. The
exceptions provided for, briefly, are that before a Private Bill can be introduced:

(i) The promoters thereof must have presented to the House a copy of the Bill annexed
to a petition for leave of the House to proceed with publication of the Bill;

(ii) The promoters must have deposited with the Clerk to National Assembly a sufficient
number of copies of the petition with the Bill annexed, for distribution to the
members; and
(iii) The petition must have been read at the first sitting of the House after its deposit and
the question "That the promoters be granted leave to proceed" must have been put
forthwith and decided without amendment or debate.

Order 120 provides that where leave to proceed is granted the promoters shall:

(i) Pay to the Clerk a prescribed fee.

(ii) Deposit with the Government Printer the sum of money as security for the cost of
printing the Bill, and

(iii) Deposit with the Clerk a bond by two persons, acceptable to the Clerk, obliging such
persons to pay the Government Printer any expense of printing in excess of the
prescribed fee.

Order 117 provides that 'every private Bill shall contain a clause saving the rights of the
President, the Government of the Republic of Kenya, of all bodies politic or corporate,
and of all others, except such as are mentioned in the Bill and those claiming by, from
or under them'

THE FOLLOWING IS THE PROCEDURE THROUGH WHICH A BILL BECOMES A

LAW:

1. Publication of Bills in the Kenya Gazette

Order 98 provides that no Bill shall be introduced unless it has been published in the
Gazette and a period of fourteen days beginning with the day of such publication, or
such shorter period as the House may resolve with respect to the Bill, has ended.
However, the period of publication for a Consolidated Fund Bill, an Appropriation Bill or
a Supplementary Appropriation Bill is seven days only.

READINGS
 First Reading
Order 101 provides that "every Bill shall be read a First Time without motion made or
question put and shall be ordered to be read a second time on such day as the member in
charge of it shall appoint".

The Clerk of the N.A reads the bill to M.Ps to make them aware of the contents of the bill.

Copies of the Bill are circulated to MPs and a date for the second reading is set.

Members are expected to prepare themselves for debate of the bill.

The first reading is therefore a mere formality, and no debate takes place .

 Second Reading
This is the most important parliamentary stage because it indicates commencement of
debate. The sponsor of the bill is given an opportunity to explain the content and
importance of the bill to his fellow M.Ps with the aim of convincing them to vote in its
favour. This stage is also important because it determines the success or failure of that
particular bill.

After the sponsor has explained his part, an interested M.P within the house shall second
the motion where after the floor will be open for debate.
The first vote will be taken (if a constitutional bill, a 65% majority or if an ordinary bill, a
simple majority is required) and if successful, the bill shall move to the next stage,
otherwise it must be withdrawn from the floor of the House and at least 6 months must
lapse before it returns for a fresh debate.

This rule ensures that the M.Ps prepare themselves well in order to avoid the 6 months
penalty which is time wasting.

The main rule regarding voting in the National Assembly identifies that there must be a
Quorum for voting to take place. I.e. the minimum number of members who must be
present for a meeting to legally commence.

 Committal Stage
Order 103 provides that a Bill having been read a second time shall stand committed to a
committee of the Whole House, unless the House commits the Bill to a select committee
of members of parliament for a critical analysis.

The sponsor of the bill automatically becomes a member of the committee and the M.Ps
will elect a chairman to heads the team.

The team is given a time frame within which it should analyse the bill and report back to
the house.

Order 104 provides that all committees to which Bills are committed shall have power to
make such amendments thereto as they think fit, and shall report the amendment to the
House.

 Report Stage
The committee shall present report to the house through its chairperson and copies will
be circulated to all the M.Ps. All the necessary clarifications and comments shall be made
regarding the report where after M.Ps will be given sufficient time to conduct individual
research on the report and prepare for the next stage.
M.Ps may consult experts on matters regarding the bill so that they equip themselves
with sound knowledge to enable them successfully debate in the next session.

 Third Reading
On the adoption of a report on a Bill the Third Reading may with leave of Mr. Speaker be
taken forthwith and if not so taken forthwith shall be ordered to be taken on a day named
by the member in charge of the Bill.

The amendments made by the committee are discussed and analysed and a small debate
takes place.

Voting takes place as in the second reading.

If successful, it indicates that M.Ps have passed the bill into law.

THE PRESIDENT'S ASSENT

Under Article 115(1) of the Constitution a Bill passed by the National Assembly must
be presented to the President for his assent. The President must signify his assent or
refusal to the speaker of the National Assembly within 14 days of receipt of the Bill. If
he refuses to assent, he must within l4 days thereof deliver to speaker a written
memorandum of the provisions he would like reconsidered and his recommendations
and the National Assembly may either:

(a) Re-pass the Bill incorporating the Presidents recommendation with or without
amendments and resend it for his assent or

(b) Re-pass the Bill in its original form thus ignoring the President’ s
recommendations. If the resolution to re-pass the Bill is such is supported by at
least 65% of all members, and 2/3rd of the delegate in the senate if it is a bill that
requires the approval of the senate, excluding ex-officio members the President
must signify his assent within 14 days of the resolution.

PUBLICATION
Article 116(1) of the Constitution states that “ A bill passed by parliament and assented
to by the president, shall be published in the Gazette as an Act of Parliament within seven
(7) days after assent.

COMMENCEMENT

Article 116(2) of the Constitution provides that “ An Act of Parliament comes into force
on the 14th day after its publication in the Gazette unless the Act stipulates a different date
on or time at which it will come into force.

ADVANTAGES AND DISADVANTAGES OF ACTS OF PARLIAMENT

An Act of Parliament may be said to possess the following advantages:

1. Democratic in nature
It is democratic in the sense that it reflects the wishes of Kenyans as to what the law
should be. This is because it is made by a Parliament which consists of representatives of
the people who are elected at intervals of not more than five years.

2. Resolution of Legal Problems

It enables Parliament to find legal solutions to any problem that the country may face.
An English judge once stated that an Act of Parliament can in theory deal with any
problem except that it cannot change man to woman, (although it may provide that
reference therein to `man' shall include 'woman'.)

3. Dynamic
It enables new challenges that emerge in the course of social development to be legally
dealt with by the passing of new Acts of Parliament, or amending some of the existing
Acts.

4. General Application
It is usually a statement of general principles and rules and can therefore be applied to
different situations in a flexible manner as determined by the court in a particular
situation.

5. Uniformly Applied
It applies indiscriminately.

6. Publicity
Statute law is the most widely published source of law.

7. Anticipation of Situation that have not arisen or matters likely to occur in future.

8. Accessibility and tidiness

Legislations are generally clear and more accessible hence their superiority while case law
is buried from sight and knowledge in huge and daily growing reports or past legislation.

9. Natural Justice
Legislation satisfies one of the requirements of natural justice that law should be known
before applied i.e. it is published and so everybody has the access and opportunity to
know the law whereas case law operates retrospectively.

Disadvantages of statute law

1. Imposition of law
Some Acts are imposed on the people and reflect the views of the Executive, or pundits in
the ruling political party.

2. Wishes of members of parliament

Acts of Parliament do not reflect the wishes of the people (voters) but the wishes of the
individuals who constitute Parliament at any given time. During debates on Bills,
Members of Parliament express their personal views and finally enact laws on the basis of
those views. They do not hold meetings in their constituencies to ascertain what the
people's views on Bills are so that they may eventually report back to Parliament what
those views are and then vote on the Bills in accordance with those views.

3. Bulky and technical Bills

Some Bills are so bulky and technical that they are passed without sufficient debate
because Parliament lacks the time and knowledge to consider them in detail.

Examples are Finance Bills.

4. Formalities
The process of enacting a statute that would substantially conform to the wishes of the
people affected by it would be very slow. This is because very many public meetings
must be held before a consensus on the proposed law can be reached. The delay in re-
introducing the abortive Marriage Bill, 1979 illustrates this point.

5. Delaying Process

6. Substandard Legislation.
 3. SUBSIDIARY LEGISLATION

This is subordinate or delegated or indirect legislation.

Although the legislative authority of the Republic is vested in Parliament, it does delegate
its law making mandate to various institutions, bodies or officials.

Section 2 of the Interpretation and General Provisions Act defines subsidiary legislation
as 'any legislative provision (including a transfer or delegation of powers or duties)
made in exercise of any power in that behalf conferred by any written law by way of
by-law, notice, order, proclamation, regulation, rule of court or other instrument'.
The by-laws, notices, orders, regulations, rules and other 'instruments' constitute the
body of the laws known as subsidiary legislation.

TYPES OF SUBSIDIARY LEGISLATION

1. By-Laws
By-Laws are usually made by Local Authorities, such as the Mombasa Municipal
Council, under the Local Government Regulations Act, 1963. Another example are the
by-laws made by the members of co-operative societies under Rule 7 of the Cooperative
Societies Rules 1969.

2. Rules
Rules are usually made by Government Ministers with the assistance of technical officers
employed by their Ministries.

E.g. the Michuki rule on transport

Rules made by Government Ministers may also be called Regulations, Orders, Notices or
Proclamations.

3. Rules of Court
Why delegated legislation?

Although Article 94 of the Constitution provides that 'the legislative power of the
Republic (of Kenya) shall vest in the Parliament', it is not possible for Parliament itself to
enact all the laws that are required to run all the affairs of this country

Although delegated legislation is a constitutional impropriety since it violates the

doctrine of separation of powers it is often regarded as a necessary evil due to the
following reasons:

a. Parliament is not always in session

b. Inadequate parliamentary time
c. Lengthy law making procedure
d. Lack of flexibility in law making
e. Lack of expertise in all fields
f. Increase in social legislation.

Characteristics of Delegated Legislation.

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

Parliament.
2. Delegated legislation must be consistent with the provisions of the Enabling or
Parent State.
3. Delegated Legislation must be published in the Kenya Gazette before becoming
into force.
4. Delegated Legislation is recognised as a source of Law by Section3 (1) (b) and(c) of
the Judicature Act. It is a written source of law and prevails over unwritten law.
However, it is subordinate to statute law and the Constitution.

ADVANTAGES

Some of the advantages of delegated legislation are:

 1. Compensation of lost Parliamentary time
Parliamentarians are politicians who have to spend much of their time in their
constituencies in order to initiative various projects, explain relevant government
programmes to the people and listen to the problems of their electors. The time so spent
constitutes a significant reduction of the time required by Parliament for legislation and
this reduction can only be compensated for by delegating some of Parliament's legislative
powers.

2. Speed
Sometimes an urgent law may be needed. Parliament may not respond to this need, first,
because of the slow and elaborate nature of Parliamentary legislative procedure and
second, because it is not in session at the material time.

A Government Minister with relevant powers can respond more effectively through
subsidiary legislation which can be enacted in one day, if necessary.

3. Technicality of subject matter

Parliamentarians are not experts on all matters that may require legislation. It may
therefore be advisable, if not inevitable, for Parliament at times to delegate the enactment
of laws of a technical nature to Government Ministers who will be assisted by the
technical officers in Government Ministries and the Attorney-general's chambers.

4. Flexibility
The procedures adopted to enact delegated legislation are flexible and, responsive to
urgent needs. The flexibility is a consequence of the fact that they are not governed by
the elaborate Standing orders that are an essential feature of parliamentary legislative
procedure.

5. Foresight
Parliament cannot foresee all situations and problems that may require legislation.
Moreover, they are likely to lack adequate skills and research facilities for all laws.
 6. Emergency situations
In case of emergency, subsidiary legislation can be used since it does not have to go
through parliamentary procedures.

DISADVANTAGES

Subsidiary or delegated legislation has been criticised for a variety of reasons, the main
ones being that it is:

1. Less democratic
The real or ultimate makers of subsidiary legislation are the technical officers in the
various government ministries. These officers have not been elected by the people
affected by the laws they make and cannot therefore be made accountable for any
undesirable law they make. To that extent, delegated legislation lacks the democratic
spirit that usually inspires, and manifests itself in, parliamentary legislation

2. Difficult to Control
Although Parliament is theoretically supposed to control subsidiary legislation this is not
so in practice. The various rules or regulations made by government ministries are so
numerous that Parliament cannot check whether their makers conformed to its intentions
or objectives. The question that usually comes to the mind is that, if Parliament is too
busy to make the law, how can it have the time to scrutinize it?

3. Inadequate publicity
D.L does not enjoy the publicity enjoyed by Legislation since its makers are civil servants
who are not representatives of the people thus not answerable to them

4. Sub-delegation and abuse

There is the danger of sub-delegation where the bodies given the mandate to make
subsidiary legislation in turn delegates the power to another person.

5. Detail and complexity

Since there exists too many statutes made under delegated powers.
 6. Retrospective effect
Most of the delegated law has retrospective effect.

CONTROL OF SUBSIDIARY LEGISLATION

Both Parliament and Courts of Law have in various ways attempted to control delegated
legislation:

1. JUDICIAL CONTROL
The courts can declare any law made as subsidiary legislation to be invalid under the
ultra vires doctrine. (I.e. Has exceeded the powers the powers)

Such law is null and void and thus has no legal validity.

The law may be declared either substantively or procedurally ultra vires.

(a) Substantive Ultra Vires

A law may be declared substantively ultra vires if the maker had no powers to make it.
This may occur in a number of ways. For example, the Minister or Authority may have:

(i) Exceeded the powers given by the Act;

(ii) Exercised the power for another purpose rather than the particular purpose for
which it was given, or

(iii) Acted unreasonably,

(b) Procedural Ultra Vires

A law will be declared procedurally ultra vires if the mandatory procedures prescribed in
the enabling Act for its enactment are not followed, such as failure to publish it in the
Gazette.

An example is the case of Mwangi & Maina Vs. R. in which Mwangi and another person
were prosecuted and convicted in the Special Magistrate's Court, Nairobi, for charging
one shilling instead of fifty cents for a haircut, contrary to Price Controller's Order No.20
of 1948 which had been made pursuant to Regulation 11(1) of the Defence (Control of
Prices) Regulations, 1945.

On appeal, the convictions were set aside when the court's attention was drawn to the
fact that the Order had not been published in the Gazette as should have been done. The
order was therefore void and nobody could be charged for allegedly violating its
provisions.

Judicial control of delegated legislation is ineffective for two reasons:

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

party.
b. The applicant must prove his case before the rule or regulations are declared ultra
vires

2. LEGISLATIVE OR PARLIAMENTARY CONTROL

Parliament may identify any part of subsidiary legislation which is disputed and table it
before the house for re-examination by a parliamentary select committee.

The committee will report back to parliament its findings and M.Ps will then vote on the
validity of such disputed legislation.

Other means that Parliament uses to control subsidiary legislation:

1. Parliament delegates law-making powers to specific person or bodies e.g.

ministers, professional bodies local authorities e.t.c.
2. Parliament prescribes the scope and procedure of law making and delegates must
comply with such prescriptions.
 3. The Enabling or Parent Statute may provide that the drafts rules of regulations be
laid before the minister for approval.
4. Under Section 27 (1) of the Interpretations and General Provision Act, unless
otherwise directed, delegated legislation must be published in the Kenya Gazette
before coming into force.
5. Circulation of draft rules to interested parties and member of parliament for
approval.

3. EXECUTIVE CONTROL
Subsidiary legislation does not receive presidential approval It is therefore upon the
experts to present their reports to the appointing minister for purposes of examination
and approval if valid.

The minister shall in turn be expected to table the reports before cabinet for collective
re-examination where after cabinet may authorise the minister to approve the report
and it shall be pronounced as law.

Unfortunately this procedure is often misused by the executive tin order to implement
unpopular laws especially where the executive knows that such proposal would nor
be approved by parliament.

4. DOCTRINE OF AGENCY
An agency is a relationship existing between a person known as principal and another,
who shall be his agent, in a manner that the agent then legally represents the principal’ s
interests.

One of the principles of agency emphasises that an agent cannot sub-delegate his
authority to ant other person because he is already a delegate. “ DELEGATUS NON
POTEST DELEGARE” I.e. A delegate cannot sub-delegate.

The experts under subsidiary legislation are legally regarded as agents of parliament and
do not have authority to sub-delegate their responsibility to any other person and in case
they do so, such work will be null and void.

STATUTES OF GENERAL APPLICATION IN FORCE ON ENGLAND AS AT

12TH AUG. 1897.
Although there is no authoritative definition of a "statute of general application" the
phrase is presumed to refer to those statutes that applied, or apply, to the inhabitants of
England generally. In the case of I v I the High Court held that the Married Women's
Property Act 1882 is an English statute of general application that is applicable in Kenya.

These laws are applicable only if:

(a) They do not conflict either with the constitution or any of the other written laws
applicable in Kenya,

(b) They must have been in force in U.K on 12 aug.1897

(c) They must have been applicable generally in the U.K as at that date i.e.

(d) The circumstances of Kenya and its inhabitants permit. In I v I the High Court
held that the English Married Women's Property Act 1882 was applicable in
Kenya because, in the court's view, the circumstances of Kenya and its
inhabitants do not generally require that a woman should not be able to own
property.

NOTE: A statute of general application which was in force in England on 12th August,
1897 but has been repealed by an English statute enacted after that date presumably
remains a prima facie source of Kenya Law unless the repealing statute has been
specifically incorporated into Kenya Law.

Examples of statutes of general application applied in Kenya are;

The Infants Relief Act 1874

Married Women Property Actn1882

Factors Act 1889

SPECIFIC ACTS OF THE PARLIAMENT OF U.K and ONE ACT OF THE

PARLIAMENT OF INDIA
Among the sources of law in Kenya are those of foreign origin, majority of which are
from the U.K because Kenya was a British Protectorate.

The following are some of the above mentioned Acts of Parliament of U.K.

-Section 7 and 8 of the Evidence Act of Britain,

-The Foreign Tribunals Evidence Act (1856)

-Conveyancing (Scotland) Act

-Disposal of Uncollected Goods Act

The single Act of the Parliament of India is the India Transfer of Property Act.

STATUTORY INTERPRETATION

The precise meaning of a law written in an Act may cause a legal dispute. This is so
because, although the law is written and can therefore be read by any literate person,
some of the words thereof may not mean the same thing to different readers. This fact
has been confirmed by the arguments adduced in court by parties to such disputes.

There are a number of situations which might lead to a need for statutory interpretation:

i. Ambiguity might be caused by an error in drafting or words may have a dual

meaning.
ii. Uncertainty may also arise where the words of a statute are intended to apply to a
range of factual situations and the courts must decide whether the case before
them falls into any of these situations.
iii. There may be unforeseeable developments.
iv. The draft may use a broad term. E.g. the word vehicle may need to be considered
in the use of skateboards and motor cycles.
There are a number of different sources of assistance for a judge in his task of statutory
interpretation:

 Rules
 Presumptions
 Other aids (intrinsic or extrinsic)

RULES OF STATUTORY INTERPRETATION:

In the course of settling some of these disputes the courts in England have elaborated the
rules which they will use in order to interpret, if necessary, any Act. Assuming that the
same rules have been or will be adopted by Kenya courts, they may be summarised as
follows:

1. Literal rule
The primary rule of interpretation is known as the literal rule. It requires judges to
interpret the words of a statute according to their grammatical or literal meaning.

Generally speaking, every word in an Act must be given a meaning and no word is to be
added to, or taken from, the Act.

Shah vs. Barnet London Borough Council

The Legislation in question in this case had a phrase “ ordinary resident” . The local
authority had denied the plaintiff bursary on the ground that he was not a “ citizen” . The
Court held that the words did not say citizen but ordinarily residents and the words must
be given their ordinary meaning.

2. The ‘ Golden’ rule

This is an amendment of the literal rule, and it will be used by the court in order to avoid
arriving at an absurd, inconsistent, or even repugnant decision under the literal rule of
construction.

In order to mitigate the possible absurdity that the application of the literal rule may
cause the golden rule will apply.
 It was explained by Parker B in case of BECKE v SMITH as follows:

“ It is a very useful rule, in the construction of a statute, to adhere to the ordinary

meaning of words used, and to the grammatical construction, unless that is at variance
with the intention of the legislature, to be collected from the statute itself, or leads to any
manifest absurdity or repugnance, in which case the language may be varied or
modified.” .

An example of the application of the rule is INDEPENDENT AUTOMATIC SALES

LTD v KNOWLES & FOSTER where it was held that a debt may be regarded as a "book
debt" within s.95 (2) (e) of the English Companies Act 1948 even though it has not been
entered in the books of the business, provided that it would or could in the ordinary
course of such business be entered in well-kept books relating to that business. To restrict
the phrase "book debts" to those debts entered in the books of the business would have
entailed an unrealistic and illogical categorization of the debts of the business.

Another example is the case of Re Sigsworth (X) murdered his mother and according to
the Administration of Estates Act, he was his mother’ s only heir. The application of the
literal rule was bound to result in an absurdity in that the murderer would be left to
inherit the victim’ s property. The Court depicted from the literal rule and held that
Sigsworth was not entitled to inherit his mother’ s property.

The court assumed the (X) had predeceased his mother.

3. The ‘ Mischief’ rule (Rule in Heydon’ s Case)

In interpreting legislation, the court will examine the Act to ascertain what its purpose
was and the 'mischief', or defect, in the common law that it was intended to remove.
This rule was explained in HEYDON'S CASE (1584) as follows:

"Four things are to be discussed 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 has Parliament resolved and appointed to cure the disease?

(iv) What is the true reason for the remedy? Judges shall.... make such construction as shall
suppress the mischief and advance the remedy".

In deciding the four points the following rules apply:

a. Look at the whole enactment because Courts must interpret what the intention of
Parliament was when it passed the Act
b. Consult the Preamble of the Act to discover if Parliament’ s intention is entitled.
c. Marginal notes appearing in many Acts may give a gist of a section.

A statute will only be construed in accordance with this rule if its construction in
accordance with the literal rule would fail to suppress, or punish, the mischief. An
example of this can be seen in the case of SMITH v HUGHES where it was held that a
prostitute who attracted the attention of passers by from a balcony window above the
street had solicited in a street within Section 1(1) of the English Street Offences Act, 1959.
The judge stated as follows:

"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, the actual place from which a prostitute attracted the attention of
somebody walking in the street did not matter, and she will be deemed to have solicited
in the street.
Gardiner vs. Sevenoaks, an English statute provided for the safe storage of certain
inflammable material found on premises. (X) stored such material in a cave and argued
that the Act had no application in his case. The Court came to a conclusion that the Act
was aimed at protecting persons working in places where inflammable material was
stored. It was held that the word “ premises” in the statute included a cave and the
statute therefore had application in (X)’ s case.

4. The ‘ Eiusdem generis’ rule

This rule states that where general words in an Act follow particular words, the general
words are to be construed as being limited to the persons or things within the class
designated by the particular words.

For example, in a reference to "cows, goats, donkeys and other animals" the general
words "other animals" would be construed to mean animals of the same genus or species
as cows, goats and donkeys, that is, domestic animals, and would not include wild
animals such as zebras, antelopes or tigers.

In EVANS v CROSS, Evans was charged with ignoring a traffic sign, namely, a white
line painted in the middle of a road, when overtaking on a bend into the road, contrary to
Section 49 of the U.K. Road Traffic Act, 1930. Section 48(10) of the Act defined a traffic
sign as "all signals, warning signposts, direction posts, signs or other devices". It was
held that the words "or other devices" must be construed 'eiusdem generis' the preceding
words and, therefore, the white painted line on the road was not a traffic sign. Evans had
therefore not committed an offence under the section

5. The ‘ Express Word Rule’

Where Parliament uses an express word, the Act only applies to the express item but
where it uses a general word, the Courts will construe the meaning in a wider sense. E.g.
A provision that imposes a writ on the occupiers of “ Land, tents, houses, dwelling
houses and coal mines” was held not to apply to mines other than coal mines although
the word ‘ land’ would normally cover all kinds of mines.
 6. Nositiur a Sociis Rule
This rule states that the meaning of a word may be known by the company it keeps. In
other words the context in which it is used.

In the case of DPP vs. Harris, the offender was charged with the offence of biting off a
prostitute’ s nose. The words of the statute stated that the offence was committed by a
person who. ” ..................stabbed, cut, or wounded” another. The accused had actually
wounded the victim but the Courts decided that the words “ stabbed” and “ cut”
implied the use of an implement and by implication, the word “ wounded” carried a
similar requirement. The accused was acquitted of the offence.

7. The Contextual Rule

This rule means that a statute must be construed in its context. It is permissible to look at
the statute as a whole to discover the meaning of the word in it.

8. Statutes in Pari materia

If a statute forms part of a series which deals with similar subject matter, the court may
look at the interpretation of previous statutes on the assumption that Parliament intended
the same thing.

The other points to be noted in relation to judicial interpretation of Acts are as

follows:

(a) No clause of an Act is to be construed in isolation but in relation to the other clauses of
the Act, and the context, so as to arrive at a consistent meaning of the whole Act.

(b) In England, the judges do not refer to the passages in HANSARD, the legislative history
of an enactment or the explanatory memoranda which preface the Bills before Parliament,
in order to arrive at a conclusion on the possible meaning of the words therein. It is not
clear whether the Kenya courts will adopt the same approach.
(c) In ASSAM RAILWAYS AND TRADING CO. LTD. v. I.R.C. Lord Wright stated:

"It is clear that the language of a Minister of the Crown in proposing in Parliament a
measure which eventually becomes law is inadmissible". The English courts cannot
therefore look at it for the purpose of construction. It is not yet known whether Kenya
courts will adopt the same view.

(d) Reports of Commissions or Committees which preceded the legislation are not looked at
by English courts for the purpose of construction. For example, in KATIKIRO OF
BUGANDA v ATT. - GENERAL a White Paper containing the recommendations of a
constitutional conference held in Uganda was held inadmissible as an aid to the
construction of the Buganda Agreement 1955 Order-in-Council 1955. Again, what the
attitude of the Kenya courts is on this is yet to be judicially made known.

(e) Dictionaries; Lord Coleridge stated in R vs. PETERS that "I am quite aware that
dictionaries are not to be taken as authoritative exponents of the meanings of words used
in an Act 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 instruction to these
books".

This means that a court may refer to, or consult, dictionaries in the absence of any judicial
guidance or authority but it is not bound by what is stated therein.

(f) Textbooks may also be referred to for assistance in finding the true construction of a
statute but Lord Goddard stated in BASTIN vs. DAVIES that a court would never
hesitate to disagree with a statement in a textbook (however authoritative or however
long it had stood) if it is thought right to do so.

PRESUMPTIONS
In their attempt to construe statutes, courts of law are guided by the following
presumptions or Assumptions.

(a) That the statute was not intended to change or alter the common law.
(b) That the statute was not intended to affect the Crown.
(c) That the statute was not intended to interfere with vested rights of individual.
(d) That the statute was not intended to impose liability without fault.
(e) That the statute was not intended to have extra-territorial effect.
(f) That the statute was not intended to be inconsistent with international law.
(g) That an accused person is presumed innocent until proven or has pleaded
guilty.

OTHER ASSISTANCE IN INTERPRETATION

1. The Interpretation Act.

The Interpretation and General Provisions and Act defines certain terms frequently
found in statutes. The Act also states unless a specific intention to the contrary exists,
the use of masculine gender terminology also includes feminine and vice versa.
Similarly, words in singular include plurals, and vice versa.

2. Intrinsic Aids
Intrinsic aids to interpretation of statutes consist of the following:

i. The Long Title of an Act, which may give guidance as to the Acts general
provisions.
ii. The Preamble of an A ct often directs the judge as to its intentions and objects.
iii. The Interpretation Sections to Acts. Particularly long, complicated and wide-
ranging Acts often contain self-explanations.
iv. Side notes. Statutes often have summary notes in the margin.

3. Extrinsic Aids
Include:

a) Reports of the Law Commissions,

b) The Law Reform Committee
 APPLICATION OF THE UNWRITTEN SOURCES OF KENYA LAW

It is a rule of Kenya Law that unwritten laws are to be applied subject to the provisions of
any applicable written law. This is a consequence of the constitutional doctrine of
parliamentary supremacy and the fact that written laws are made by parliament, either
directly or indirectly.

When it is said that an unwritten law is applied subject to a written law it does not mean
that a written law is more important than an unwritten law. It only means that if any rule
of unwritten law (for example, a rule of African customary law) is in conflict with a clause
in a written law, the unwritten law will cease to have the force of law from the moment
the written law comes into effect.

This rule enables Parliament to make new laws to replace existing customs as social
conditions change. It also obviates the possibility of having two conflicting rules of law
regarding one factual situation.

An unwritten law that is not in conflict with a written law is as binding as any written
law and a breach of it renders what has been done as illegal as if the law broken was a
written law.

THE UNWRITTEN SOURCES OF KENYA LAW

1. COMMON LAW
Common law may be described as that branch of the law of England which was
developed by the English courts on the basis of the ancient customs of the English people.
 Osborn's law dictionary defines the common law as "that branch of the law of England
formulated, developed and administered by the old common law courts on the basis of
the common custom of the country".

It was the duty of the Norman Kings who seized control of England from 1066 through
the Judges to put different ancient customs into a uniform mass, “ the common law of the
realm”

In this way the state took over and enforced summary rules of conduct which were
originally formulated simultaneously by the people themselves for regulating their action
and behaviour.

Before the conquest, there was no law common to the whole land. The laws were
scattered on all sides, in Counties or Shrines, Hundreds (divisions of Shrines) and
Boroughs (Towns)

The local customary laws had been crystallised into the laws of Mercia, the law of Wessex
and Dane law, all separate districts of England.

William 1 realised that he must unify the English people by a strong national unity,
which could be achieved only through the methodical fusion of diverse local customs in
to a common law running through the whole of England.

This process of unification was largely completed by his great successors and by the
middle of the 13th Century, there had been established a system of Royal Court of Justice.

This was achieved by the use of the General EYRE. He was assisted by traveling
commissioners who administered justice, collected taxes and gradually established a
common law and common procedures throughout the country.

Since most of the cases heard by the traveling commissioners were local cases based on
custom, if a judge found a local custom to be good, he applied it, upheld it, it became
law, and all other commissioners applied it in solving disputes in other districts.
Stare Decisis prompted certainty, uniformity and consistency in the new common law.
The accumulation of precedents soon established a considerable body of common law
which grew more comprehensively and detailed as the years passed by.

Common law thus developed based on judicial precedent.

The common law courts

The CURIA REGIS (The King’ s Council)

The Supreme Court in England under the Norman Kings was the Curia Regis. It
consisted of the Royal household, officers of the state such as the Justiciar and the Judges.

The Council was originally an advisory body which the King consulted on matters of
state and through which orders were issued to be executed at the local level.

It was also a body in which royal justice would be secured. It tried all cases in which the
Crown was directly interested

It tried all cases in which the Crown was directly interested in e.g.

 Crimes of a varying nature,

 Breach of the King’ s peace,
 Infringement of the King’ s proprietary rights, and in addition,
 For ordinary people, it was an emergency court of last resort when all other
methods of justice failed.

Gradually there emerged three separate courts from the REGIS

i. The Court of the Exchequer

This court’ s principle jurisdiction was that of royal revenue, but later it applied as apart
of its jurisdiction in times of debts between citizens.
In early times the judges were badly paid and depended largely on court fees for
remuneration and as a result, they tried to attract litigants into their courts. The court of
the exchequer came in time to take many cases of debt which would have been heard in
the court of the common pleas. It issued writs to commence action for a sum slightly
below the charge demanded by the court of the common pleas.

ii. The Court of the Common Pleas

This court’ s jurisdiction to solve civil disputes between citizens, but later, it tended to
interfere with the jurisdiction of the Court of the Admiralty

iii. The Court of the King’ s Council

This court’ s were pleas of the Crown i.e. Criminal cases. In addition however, it came to
supervise inferior courts by prerogative writs, enjoyed certain jurisdiction of appeal, and
took over certain cases which were within the jurisdiction of the court of the common
pleas.

NOTE: It is not the entire common law that is a source of Kenya law but only that portion
which the Judicature Act describes as "the substance of the common law". This
presumably means that the writ system and its complex rules of procedure that were
developed by the old common law courts for the administration of the common law do
not apply to Kenya.
Defects of the common law:

(a) The Writ System

A person intending to commence an action at common law had to obtain a 'writ' from
the government department that was authorized to issue writs. A writ was a document
in the King's name and under the Seal of Crown commanding the person to whom it
was addressed to appear in a specified court to answer the claim made against him by
the person at whose request the writ had been issued. However, there were some injuries
for which no writs were available at common law owing to the fact that, at that particular time of
the common law's growth, writs could only be issued in a limited number of cases. An example
is the tort of nuisance affecting one's enjoyment of land for which no writ existed at the
time. In such cases the injured person could not take the wrongdoer to any of the
common law courts and was, as a consequence, left without a remedy for a wrong
inflicted. The Lord Chancellor, in the King's name, intervened and developed remedies
for such injuries.

(b) Procedural Technicalities

The procedure in the common law courts was highly technical and many good causes of
action were lost due to procedural technicalities. For example, if A sued B because of the
trespass of B's mare and in his writ A described the mare as a stallion, the action would
be automatically dismissed. This led to the urgent craving for a new system of procedure
that would dispense justice without undue regard to technicalities.

(c) Delays

Certain standard defences known as "essoins" caused considerable delay before a case
could be heard. For example, the hearing of a case could be automatically postponed for
a year and a day if the defendant pleaded sickness as a defence even though the court
had not verified the truth of the defence. The Lord Chancellor generally disallowed these
defences and adopted the maxim "delay defeats equity"
(d) Inadequate remedies

The only remedy available at common law for a civil wrong was financial compensation
called damages. This might not be adequate compensation in such cases as breach of
contract to sell a piece of land. However, a common law court could not order the
defendant to convey the land to the plaintiff. The Lord Chancellor intervened and
developed the remedy of "specific performance" for such cases. The Chancellor, in the
King's name would order the defendant to convey the land to the plaintiff.

(e) Non-recognition of trusts

The common law did not recognize "trusts".

(f) Inadequate recognition of borrowers: At common law a borrower who failed to pay
the amount borrowed within the contractual period of repayment often lost his security
as well the amount paid since there was no extension of time.

(g) Rigidity or inflexibility: The doctrine of Stare Decisis, which insisted on the previous
decisions in subsequent similar cases, made the common law system inflexible and
unresponsive to change.

(h) Bribery and corruption were common.

(i)Because of a system called ‘ trial by wager of law’ the party with a greater number of
supporters would win his case and as such, supporters would be hired outside the court.

2. EQUITY
The word "equity" ordinarily means "fairness" or "justice".

The litigants who were dissatisfied with the decision of common law turned to the King
and petitioned him to do justice and provide them with an appropriate remedy.
At first, the King Himself attended to the petition. With the increasing pressure of work,
he later handed the petition to the Lord Chancellor.

The Lord Chancellor was a priest and a State man, and was also known as “ The Keeper
of the King’ s Conscience” , and in 14th Century, a separate Court, the Court of the
Chancery was set up to administer the new system.

It should be noted that equity is "a gloss upon the common law". It was developed to
supplement the common law but not to supplant it. It does this by, as it were, filling in
the gaps left by the common law and, where appropriate, providing alternative remedies
to litigants for whom the remedies available at common law are inadequate.

THE MAXIMS OF EQUITY

Because equity is based on fairness, it is subject to a number of maxims which limit the
circumstances in which it can operate.

1. Equity does not assist a volunteer: Which means that a person cannot use equity
to help him get something for nothing.
2. He who comes to equity must come with clean hands: The plaintiff must have
done nothing that would tend to deny him the relief.
3. He who seeks equity must do equity: i.e. a person seeking a remedy based on
fairness, must be willing to behave fairly.
4. Delay defeats equity: Is a recognition of the fact that disputes must be settled
promptly.
5. Equity looks at the intent, rather than the form: I.e. equity will look at the reality
of what happened rather than requiring formalities.
6. Equity follows the law: Indicating that equity will never be contrary to a statute.
7. Equity will not suffer a wrong to be without a remedy: which emphasises the
flexibility of equity and its ability to develop solutions.

EQUITY MODIFIED THE COMMON LAW IN THE FOLLOWING WAYS:

1. Recognition of trust
2. Recognition of mortgages
3. Developed the procedural mechanism of discovery of documents, which facilitates
production of evidence before the court for purposes of decision-making
4. Equity developed additional remedies e.g. Injunction, specific performance
appointment of a receiver, winding up e.t.c.
 5. The equitable maxims ensured that disputes were settled quickly.

EQUITABLE REMEDIES

Equity offered a range of practical remedies that were not available at common law. Like
equity, the remedies are discretionary in the sense that a court does not have to award
them even if a person won his case.

They include:

1. Injunction - This is the court order which could take the following form:
A prohibitory injunction - forbidding a person from doing something

A mandatory injunction – ordering someone to do something

An interlocutory injunction –

2. Specific performance
This is a court order compelling a person to fulfil his obligations under a contract. It is
often used to compel a seller to transfer it to the buyer.

3. Rescission
This is the cancellation of a contract and the restoration of both parties to the situation
they were in before the contract was made so that neither suffers loss.

4. Rectification
This allows the parties to a contract to correct any mistakes in the written contract they
have made.
 5. Appointment of a receiver

6. Declaration

7. Tracing

DIFFERENCE BETWEEN EQUITY AND COMMON LAW

COMMON LAW EQUITY

1.That part of unwritten law of England 1.Unwritten law of England that was
whose origin was the customs and developed by the king and his Lord
traditions of the ancient English people and Chancellor to supplement the inadequacy
the court judgements of common law

2.They apply against the whole world at 2.They apply against a specific person
large i.e. in rem /group of persons i.e. in persona

3.The rights and remedies are mandatory 3. They are discretionary and may be lost
and will be granted as long as the where the complainant is in breach of any
complainant proves that he has suffered maxim of equity.
legal remedy.

4.Most have been codified and 4.Equity remains unwritten source of law
incorporated into statute law e.g. the law of and all that exists in writing is the set of
contract, defamation, occupier’ s liability maxims of equity.
e.t.c

5.Damages are the most available remedies 5.There exists various and practical
remedies
6.Governed by established rules 6.Governed by the maxims of equity

7.Anyone who complied with the rules 7.Only those who came with clean hands
could bring a claim would bring a claim

SIMILARITIES

1. The two sources of law are unwritten and originate from ancient England.
2. Both developed through the doctrine of stare decisis.

As a source of Kenya law, the phrase "doctrines of equity" means the body of English law
that was developed by the various Lord Chancellors in the Court of Chancery to
supplement the rules and procedure of the common law. The Lord Chancellors
developed equity mainly according to the effect produced on their own individual
conscience by the facts of the particular case before them.

However, the substance of common law and the doctrines of equity are applicable in
Kenya only if the circumstances of Kenya and its inhabitants permit and subject to such
qualifications or modifications as those circumstances may render necessary.

The English Judicature Act 1873 provided that if there is any conflict between common
law and equity, equity is to prevail. However, there is no Kenya statute to that effect. But
since the Act appears to be a statute of general application which was in force in England
on 12th August, 1897 it is prima facie applicable to Kenya. If so, any conflict between a
rule of common law and a doctrine of equity that arises in a Kenya Court would be
resolved by applying the doctrines of equity.
 3. AFRICAN CUSTOMARY LAW
African customary law may be described as the law based on the customs of the ethnic
groups which constitute Kenya's indigenous population. Section 3(2) of the Judicature
Act 1967 provides that 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.

These provisions of the Judicature Act may be explained as follows:

(a) Guide

The courts are to be "guided" by African customary law. This provision gives a judge
discretion whether to allow a particular rule of customary law to operate or not. The
judge is not bound by any rule of customary law and may therefore refuse to apply it
if, for example, he feels that it is repugnant to justice or morality.

(b) Civil Case

Customary law is applicable only in civil cases. Section 2 of The District Magistrate's
Court's Act 1967, restricts the civil cases to which African customary law may be applied
to claims involving any of the following matters only:

(i) land held under customary tenure;

(ii) marriage, divorce, maintenance or dowry;

 (iii) seduction or pregnancy of an unmarried woman or girl;

(iv) enticement of, or adultery with, a married woman;

(v) matters affecting status, particularly the status of women, widows and children,
including guardian-ship, custody, adoption and legitimacy;

(vi) intestate succession and administration of intestate estates, so far as it is not

governed by any written law.

In KAMANZA CHIWAYA v TSUMA (unreported High Court Civil Appeal No.6 of

1970) the High Court held that the above list of claims under customary law was
exhaustive and excludes claims in tort or contract.

(c) Subject to it or affected it

One of the parties must be subject to it or affected by it. If the plaintiff and the defendant
belong to the same ethnic group, they may be said to be "subject" to the customs of that
ethnic group which could then be applied to settle the dispute.

For example, a dispute between Kikuyus relating to any of the matters listed in (b) above
cannot be settled under Kamba, Luo or any other customary law except Kikuyu
customary law.

However, if there is a dispute involving parties from different ethnic groups it may be
determined according to the customs of either party, since the other party would be
"affected" by the custom.

(d) Repugnance to justice and morality

The customary law will be applied only if it is not repugnant to justice and morality.
Although the Act uses the phrase "and" in relation to "justice and morality", it appears
that "or", rather than "and", was intended.

In MARIA GISESE ANGOI v MACELLA NYOMENDA (see Civil Appeal No.1 of 1981
being the judgement of Aganyanya J. delivered at Kisii on 24-5-1982) the High Court held
that Kisii customary law which allows a widow who has no children or who only has
female children to enter into an arrangement with a girl's parents and take the girl to be
her wife and then to choose a man from amongst her late husband's clan who will be
fathering children for her (i.e. the widow), was repugnant to justice because it denied the
alleged wife the opportunity of freely choosing her partner.

The Court refused to follow the custom and declared that there had been no marriage
between the appellant and the respondent.

A rule of customary law that might be declared to be repugnant to morality is the Masai
custom that a husband returning home and finding an age-mate's spear stuck at the
entrance to his hut, as a means of informing him that the owner of the spear is at the
moment having an affair with his wife and he should not interrupt. The husband cannot
take divorce proceedings under Masai customs against his wife for adultery. In the event
of such a declaration, a Masai man would be able to petition the court for divorce on the
ground of the wife's adultery at common law.

Consistent with the written Law

Where the provisions of African Customary Law contradict with those of written law
over the same subject, the provisions of the written law shall prevail.

Advantages of African customary Law

3. Localised; since it is based on customs of indigenous population, it is a

reflection of people’ s way of life and is readily accepted.
 4. Practical; having been in force for many successive generations, since time
immemorial, customary law is well settled. Matters of interpretation do not
arise since there is only one possible interpretation.

Disadvantages

1) Immorality and injustices; Some African customs are repugnant to morality

and justice. Practices such as wife inheritance which might have served
certain purposes in the past are now outdated.

2) Lacks uniformity; A.C is as variable as the number of ethnic groupings in

the country.

3) Rigidity; Its inability to adjust to changing times has caused a decline in its
application.

4) Application; It is a subsidiary source of law

Islamic Law

Islamic law is the law based on the Holy Koran and the teachings of the Prophet
Mohammed as explained in his Sayings called "Hadith".

This is a limited source of law in Kenya.

It is applied by the Kadhi’ s Courts, established under section 66 of the Constitution.

Under Section 5 of the Kadhi’ s Courts Act, it is provided that the Kadhi’ s shall have
and exercise jurisdiction in questions of Muslim law relating to:

 Personal status
 Marriage
 Divorce
 Inheritance
In proceedings where all the parties profess to the Muslim faith.
 HINDU LAW

Hindu customary rites are applicable under S.5 of the Hindu Marriage and Divorce Act,
1960. S.2 of the Act defines a "custom" as "a rule which, having been continuously
observed for a long time, has attained the force of law among a community, group or
family, being a rule that is certain and not unreasonable, or opposed to public policy; and,
in the case of a rule applicable only to a family, has not been discontinued by the family".
Hindu customary rites are a source of Kenya law only for purposes of solemnizing Hindu
marriages.
 CASE LAW OR JUDICIAL PRECEDENT

Case law" may be described as the method or way of learning law "through the cases".
By studying a particular case and the decision therein, we get to know the legal rules
relating to the factual situation of the case. The more cases we learn the more we are
"learning the law".

For case law to be effectively applied as a source of law, the following doctrines are worth
of mention

 The Doctrine of Stare Decisis

 Ratio Decidendi
 Obiter Dictum

THE DOCTRINE OF "STARE DECISIS" OR JUDICIAL PRECEDENT

The doctrine of "stare decisis" or "judicial precedent" is a legal rule that requires a judge to
refer to earlier cases decided by his predecessors in order to find out if the material facts
of any of those cases are similar to the material facts of the case before him and, in the
event of such a finding, to decide the case before him in the same way as the earlier case
had been decided. In this way, the earlier decision "stays" or "stands" as it was made.

The doctrine has been described as the "sacred principle" of English law. It was
developed by the English courts as a mechanism for the administration of justice which
would enable judges to make decisions in an objective or standard manner instead of
subjectively and in a personalised manner.

“ RATIO DECIDENDI”

The “ ratio decidendi” of a case consists of the material facts of the case and the decision
made by the judge on the basis of those facts. The material facts become, as it were, the
basis or "rationale" (ratio) upon which the judge is to decide (decidendi) the case. They
constitute, in ordinary parlance, the reason, or ground, of the judge's decision and ensure
that the decision-making process is a rational one.
The ratio decidendi of a decided case constitutes the legal rule, or principle, for the
decision of future cases with similar material facts. In other words, the decision is a
precedent to be followed when deciding such cases.

TYPES OF PRECEDENTS

A precedent may be:

(a) A binding precedent the judge must follow whether he approves of it or not. It is
binding upon him and excludes his judicial discretion for the future. These, generally
speaking, are decisions of higher courts.

(b) A persuasive precedent if it is one which the judge is under no obligation to follow
but may however take into consideration, or follow, in the course of considering his
intended decision. These, generally speaking, are decisions of lower courts and the
decisions of superior courts in the Commonwealth.

A precedent may also be classified as:

c) An original precedent if it is one which creates and applies a new legal rule. This
occurs when in a particular set of facts, no previous decision has been given which the
Courts can rely on. In this way, the judge lays down an original precedent to be followed
in future in cases with similar set of facts.

d) A declaratory precedent if it is one which does not create a new legal rule but merely
applies an existing legal principle. This occurs where the facts of the case are straight
forward and the Judge just reads the law as it is.
e) A distinguishing precedent. This is done to establish that the facts of an earlier case
are different from those in the case at hand in a material way, so that the earlier precedent
is held not to apply. The earlier precedent remains law in its own circumstances, while
the one at hand though not following it also becomes law, to the extent that there exists
two precedents

f) An overruling precedent A case is said to be ‘ overruled’ if it is expressly deprived of

all legal effect so that it ceases to have any authority at all. This is done where it is felt that
the earlier case was wrongly decided or that it was decided without regard to an existing
and legally tenable principle of law. (I.e. it was done “ per in curium” )

OBITER DICTUM

This is a "by the way" statement made by a judge before delivering his judgement with a
view to re-enforcing or strengthening his reasons for the decision that he will make is
known as "the obiter dictum" of the case. If more than one such statements are made,
they are known as obiter dicta. An obiter dictum is defined by Osborne's Concise Law
Dictionary as "an observation by a judge on a legal question suggested by a case before
him, but not arising in such a manner as to require decision".

Although an obiter dictum does not constitute a legal rule for the decision of future cases
it may constitute a "persuasive precedent" for a relevant later case. In other words, it may
be used by an advocate to "persuade" a judge hearing a case to accept as a legal rule the
view it expresses.

STARE DECISIS AND ITS APPLICATION BY THE KENYA COURTS

There is so far no case decided by the Kenya Court of Appeal regarding the application of
"stare decisis" by Kenya Courts. What we have are the rules which were formulated in
1970 by the then Court of Appeal for East Africa at the time that it was also the Court of
Appeal for Kenya. However, it can be assumed that the rules which the Court of Appeal
for East Africa laid down for Kenya Courts in Dodhia v. National & Grindlays Bank are
still binding on the Kenya Courts (with the probable exception of the Kenya Court of
Appeal)

These rules are:

(i) Subordinate courts are bound by the decisions of superior courts.

To understand the full implications of this statement you should have the diagram of
the Kenya courts in front of you.

(ii) A subordinate court of appeal should be bound by a previous decision of its own.

Subordinate courts of appeal are the High Court, Resident Magistrate's Court, Senior
Resident Magistrate's Court, Principal Magistrate's Court, Senior Principal
Magistrate's Court, the Chief Magistrate's Court and the First Class District
Magistrate's Court. These courts are "subordinate" because they have higher courts
above them. However, they are "courts of appeal" because they hear appeals from
the courts below them.

(iii) As a matter of judicial policy, the final court of appeal, while it would normally
regard a previous decision of its own as binding, should be free in both civil and
criminal cases to depart from such a previous decision when it appears right to do so.
Regarding point (i) above, the court did not clarify whether a subordinate court would be
free to depart from a decision of a higher court because it appeared to be in conflict with a
decision of a still higher court. For example, can a Resident Magistrate's Court refuse to
follow a decision of the High Court because it appears to be in conflict with a decision of
the Court of Appeal? However, in MILIANGOS vs. GEORGE FRANK (TEXTILES) LTD,
the House of Lords stated that 'it is the duty of a subordinate court to give credence and
effect to the decision of the immediately higher court, notwithstanding that it may
appear to conflict with a decision of a still higher court. The decision of the still higher
court must be assumed to have been correctly distinguished (or otherwise interpreted) in
the decision of the immediately higher court'. The Kenya Court of Appeal might adopt
this rule when it ultimately becomes necessary to decide the point.

Regarding point (iii) above, the Court of Appeal for East Africa explained in Dodhia's
case that a final court of appeal (such as the Kenya Court of Appeal) should be free to
depart from an earlier decision of its own:

(a) Erroneous or improper conviction

In criminal cases, if following the earlier decision would result in an improper conviction;

(b) Changes in circumstances

If there have been rapid changes in the customs, habits and needs of the people, since the
earlier case was decided, so that these changes should be reflected in the decision of the
final court of appeal, and

(c) Per incurium rule

If it is satisfied that the earlier decision was given "per incurium". The court did not
however explain what would constitute a "per incurium" decision. However, in
MILIANGOS v GEORGE FRANK (TEXTILES) LTD the English House of Lords stated
that a decision is only per incurium where:
 (i) the judgment was given in inadvertence to some authority (judge-made,
statutory or regulatory) apparently binding in the court giving such judgment,
and

(ii) if the court giving such judgment had been advertent to such authority, it would
have decided otherwise than it did (i.e. it would, in fact, have applied the
authority).

(b) Distinguishing the earlier decision

(c) Ratio decidendi of earlier decision is too wide or obscure.

(f) Earlier decision has been overruled by statute

(g) Ratio decidendi is in conflict with a fundamental principle of

law.

(h) Ratio decidendi is one of the many conflicting decision of a court of Co-
ordinate jurisdiction.

In BAKER v In BAKER THE QUEEN Lord Diplock stated:

"Strictly speaking the per incurium rule as such, while it justifies a court which is bound
by a precedent in refusing to follow one of its own previous decisions, does not apply to
decisions of courts of appellate jurisdiction superior to that of a court in which the rule is
sought to be invoked. To permit this use of the per incurium rule would open the door to
disregard of precedent by the court of inferior jurisdiction by the simple device of holding
that decisions of superior courts with which it disagreed must have given per incurium".
This means, for example, that a Resident Magistrate's Court cannot refuse to follow a
decision of the High Court on the ground that such decision was made per incurium (i.e.
in inadvertence to a decision of the Court of Appeal).
Any court can depart from a previous decision of its own if the decision was made per
incurium.

ADVANTAGES AND DISADVANTAGES OF STARE DECISIS

The main advantages and disadvantages of the doctrine of stare decisis are:

Advantages

i. Certainty and Predictability

The doctrine of stare decisis introduces an element of certainty and uniformity in the
administration of justice. Since lawyers are able to focus with reasonable certainty what
the attitude of the court is likely to be on a given set of facts. This enables them to advise
their clients reliably.

In DODHIA V NATIONAL AND GRINDLAYS BANK the then Court of Appeal for East
Africa expressed the view that the administration of justice requires an element of
certainty and uniformity which would not be possible if judges were free to make
decisions without regard to earlier decisions.

ii. Aptitude for growth

The process of 'distinguishing' cases facilitates the growth of detailed legal principles to
deal with different factual situations. This would probably not be possible in a purely
enacted system of law. A case is 'distinguished' if a judge points out the difference in the
material facts of an earlier case and the case before him for decision, as the basis for
arriving at a different decision.

iii. Practicality
The case law method has enabled judges to adopt a practical approach to legal problems
since such problems have arisen from the practical situations in which the litigants have
found themselves. This practical approach has also enabled judges to make decisions
only after being satisfied that the particular decision would not create practical problems
for the people subject to the law.

An example is the refusal of the court in Pharmaceutical Society v Boots to regard the
display of goods in a shop-window as an offer to sell them at the indicated prices. Such a
decision would have had the inconvenient consequence that customers would henceforth
lose freedom to pick and replace various items before ultimately presenting them to the
cashier, contrary to what was actually happening in practice.

iv. Rich in detail since each principle of law is supported by elaborate judgments of
distinguished judges.

v. Consistency and uniformity; Similar cases are decided alike.

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

vii. It is more dynamic and keeps pace with changing needs of the society since case
law deals with daily practical problems.

2. Disadvantages

(i) Rigidity

The case law method of administration of justice has been criticized on the grounds that it
leads to rigidity, since the discretion of a judge is usually restricted by the rule that he
must follow the decision of his predecessors if the material facts of the case to be decided
are the same as those of an earlier case.

(ii) Over-subtlety/Artificiality

Because a judge is forced, as it were, to follow an earlier case which his conscience may
preclude him from following, he might be inclined to 'distinguish' the present case from
the earlier case. This artificial 'distinguishing' sometimes creates artificial differences
which make case law over-subtle.

(iii) Bulk and Complexity

Many cases are being decided everyday by courts all over the country, case law has
become bulky and complex and it is doubtful whether judges would really know if a
relevant earlier case had been decided, say some ten years ago.

(iv) Piece-meal

Rules of law are made in bits and pieces

 TOPIC 4: THE STRUCTUTE OF KENYAN COURTS

The Kenya Courts are organised in the form of a pyramid with the Supreme Court at the apex,
the Court of Appeal below it and the High Court immediately below it, the Subordinate Courts
consisting of the Magistrates Courts, District Magistrates Courts, Court Martial and the Kadhi’ s
Court.

The structure of the Courts is based on the Constitution, the Magistrates Courts Act, and the
Kadhi’ s Courts Act.
THE SUPREME COURTS
Establishment and Composition
The Supreme Court is established under Article 163 of the Constitution which states that:
“ There is established the Supreme Court, which shall consists of-
(a) The Chief Justice, who shall be the President of the Courts;
(b) The Deputy Chief Justice, who shall-
I. Deputise for the Chief Justice; and
II. Be the vice-president of the Court; and
(c) Five other Judges.

“ The Supreme Court shall be properly constituted for the purposes of its purposes of its
proceedings if it is composed of five judges.

Jurisdiction
The Supreme Courts shall have-
a) Exclusive original jurisdiction to hear and determine disputes relating to the
elections to the office of President arising under Article 140; and
b) Subject to clause (4) and (5), appellate jurisdiction to hear and determine appeals
from-
I. The Court of Appeal; and
II. Any other court or tribunal as prescribed by national
legislation.
Appeals shall lie from the Courts of Appeal to the Supreme Courts-
a) As of right in any case involving the interpretation or application of this Constitution;
and
b) In any other case in which the Supreme Court, or the Court of Appeal, certifies that a
matter of general public importance is involved, subject to clause (5).
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.

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

The Supreme Court shall make rules for the exercise of its jurisdiction.

An Act of Parliament may make further provisions for the operations of the Supreme Court.

THE COURT OF APPEAL

Establishment
Article 164(1) of the Constitution establishes the Court of Appeal which states that 'there is
established a Court of Appeal which shall be organised and administered in the manner
prescribed by an Act of Parliament '.

Composition
Article 164 (1) (a) of the Constitution states that 'the Court of Appeal shall consist of the number
of Judges not being fewer than twelve ... as may be prescribed by an Act of Parliament'.

Jurisdiction
Article 164(3) of the Constitution provides that the Court of Appeal 'shall have such jurisdiction
and powers in relation to appeals from:
i. The High Court,
ii. Any other Court or tribunal as prescribed by an Act of Parliament.

Note:
The Court may have jurisdiction as a court of first instance in cases of contempt of court.
Contempt of court means any act done inside the Court or within the Court premises with the
intention of obstructing the administration of justice.

Section 3(1) of The Appellate Jurisdiction Act 1977, provides that 'the Court of Appeal shall have
jurisdiction to hear and determine appeals from the High Court in cases in which an appeal lies to
the Court of Appeal under any law'. Section 3(3) of the Act further provides that in the hearing of
an appeal in exercise of the jurisdiction conferred by the Act, the law to be applied shall be the law
applicable to the case while it was being heard in the High Court.

The Criminal Procedure Code provides that if the High Court gas heard a criminal appeal from a
lower court, a further special appeal can be made to the Court of Appeal by either the A.G or the
defendant on matters of law only. The Court cannot hear an appeal on matters of fact or against the
sentence, except where a sentence has been enhanced by the High Court and the Subordinate Court
exceeded its sentencing powers.

The Civil Procedure Act provides that in civil cases, the appeal can be made to the Court of Appeal
on the following grounds.
 The decision being contrary to Law, or some usage having the force of Law.
 The decision having failed to determine some material issues of law or having the force of
law.
 A substantive error or defect in the procedure provided this Act or by other law for the
time being in force, which may possibly have produced error of defect in the decision of
case upon the merits

1. Section 4(4) of The Judicature Act provides that an Appeal shall lie from the decision of
the High Court in exercise of admiralty jurisdiction.

2. Where the High Court has served as the trial court in a criminal case, any person
convicted and sentenced to death or more than 12 months imprisonment, or a fine over
Kshs.2000 may appeal against the conviction on the grounds of law or fact

3. Where a person has been acquitted in a trial by the High Court and the Attorney
General feels that the case involves a point of law of exceptional public importance, and
that it is desirable in the public interest that the point should be determined by the Court
of Appeal, he can ask the Court of Appeal to review the case. The Court will give a
declaratory on the point of law involved, which will be binding on all Courts subordinate to
the Court of Appeal.

Procedure
The practice and procedure of the Court of Appeal are regulated by Rules of Court made by the
Rules Committee constituted under the Appellate Jurisdiction Act. However, Section 5(3) (1) of
the Act provides that an uneven number of at least three judges shall sit for the final determination
of an appeal other than the summary dismissal of an appeal.
Where more than one judge sits for the determination by the court on any matter (whether final or
otherwise), the decision of the court shall be according to the opinion of a majority of the judges
who sat for the purpose of determining that matter.

Every appeal is brought by way of petition, supported by a memorandum of appeal, and the Court
may:-
  Uphold the decision of the trial Court
 Reverse the decision
 Order a new trial
 Substitute another judgment

The Court of Appeal has no jurisdiction to hear appeals in the following cases.
 Court Martial cases
 Enforcement of fundamental rights and freedoms
 In criminal proceedings, from a conviction on a plea of guilty except as to the extent or
legality of the sentence
 In civil proceedings, there is no appeal in the case of consent or a second appeal when the
value of the subject matter of the original suit does not exceed Kshs.1000 unless special
leave has been granted by the Court of Appeal
 In respect of a special finding under Section 166 of the Penal Code to the effect that a
person was guilty of the act or omission charged, but was insane. A special finding is an
acquittal not a conviction.

THE HIGH COURT

Establishment
The High Court is established by Article165 (1) of the Constitution which states that 'there shall
be a High Court, which shall be organised and administered in the manner prescribed by an Act
of Parliament'.

Composition
Article 165 (2) of the Constitution provides that there shall be a Principal Judge of the High Court,
who shall be elected by the Judges of the High Court from among themselves. (Herein referred to
as Puisne Judges).

Jurisdiction
1) Unlimited Original Jurisdiction
Article 165 of the constitution states that the High Court shall have 'unlimited original
jurisdiction in civil and criminal matters and such other jurisdiction and powers as may be
conferred on it by the constitution or any other law'. Although the jurisdiction of the High
Court is unlimited it will in practice only serve as a trial court for civil cases in which the amount
claimed is more than Shs.3 000,000 and cannot therefore be heard in any Magistrate's Court.

2) Exclusive Jurisdiction (Interpretation of Constitution)

Article 165 (3) of the Constitution provides that where any question as to the interpretation of the
constitution arises in any proceedings in any subordinate court, and the court is of the opinion that
the question involves a substantial question of law, the court may, and shall if any party to the
proceedings so requests, refer the question to the High Court. For purposes of determining the
question referred, it shall be composed of an uneven number of judges, not being less than three.
The decision of the High Court binds the Court that referred the question to the High Court and it
must dispose the case in accordance with the High Court's decision.

3) Supervisory Jurisdiction
The High Court has jurisdiction under Article 165 (6) of the Constitution to supervise any civil or
criminal proceedings before any magistrate's court or court-martial and can make such orders,
issue such writs and give such directions as it may consider appropriate for the purposes of
ensuring that justice is duly administered by such court.

The High court can supervise these proceedings on the request of a person who cannot get justice
through other means. This type of jurisdiction is also exercised over tribunals and administrative
authorities acting judiciary by means of:-

(a) Writ of HABEAS CORPUS (Produce the body)

The Constitution guarantees the personal liberty of the individual and when he is arrested and kept
in confinement without legal justification, he or any other person on his behalf may apply to the
High Court to obtain his release by the issue of the writ of habeas corpus , directing the person
detaining such a person to release him or have him produced before the High Court.

(b) CERTIORARI (To be informed)

This is an order issued to an inferior Court or body exercising judicial or quasi-judicial functions to
have the records of its proceeding produced before the High Court for the following purpose:-
 Secure an impartial trial
 Review an excess of jurisdiction
 Challenge an ultra vires act
 Correct errors of law on the face of record
 Quash a judicial decision given against the rule of law

(c) PROHIBITION
An order of prohibition is issued to prevent an inferior court or tribunal from hearing or
continuing to hear a case either in excess of its jurisdiction or where the rules of natural justice are
violated. It’ s of no use when the final decision has been given.

(d) MANDAMUS (We Command)

Issued to any person or body (not necessarily an inferior court) commanding him or them to carry
out a public duty imposed by Law. It is available to compel an administrative tribunal to hear to
hear an appeal, or to force a Local authority to produce its accounts for inspection by the rate-
payers.

4) Admiralty Jurisdiction
The High Court is constituted as a court of admiralty by Section 4 of the Judicature Act for the
purpose of exercising 'admiralty jurisdiction in all matters arising on the high seas or in
territorial waters, or upon any lake or other navigable inland waters in Kenya'.
The law applicable to such cases is the Admiralty Law of England, but shall be exercised
“ in conformity with International Laws and the comity of nations”

5) Jurisdiction In Fundamental Rights And Freedoms Of Individuals

The High Court has the jurisdiction to determine the question whether a right or fundamental
freedom in the bill of rights has been denied, violated infringed or threatened.

6) Parliamentary election petitions.

The High Court also hears election petitions.
The High Court has jurisdiction to determine whether:
- A person has been validly elected as a member of the National Assembly
- The seat in the National Assembly of a member there of has become vacant
-
7) Appellate Jurisdiction
The appellate jurisdiction of the High Court is exercised in accordance with the provisions of the
Civil Procedure Code and the Criminal Procedure.
Section 374 of the Criminal Procedure Code provides that in every case, in every case “ A person
convicted in a trial held by a Subordinate Court of the first or second class may appeal to the High
Court”
Appeals to the High Court from convictions in criminal cases may be on matters of law or matters
of fact.
Where a person has been acquitted by a subordinate court of any offence, or where a charge has
been dismissed, the A.G may appeal to the High Court against such acquittal. These appeals shall
only be on matters of law. The High Court may order a re-trial but only in cases where the trial was
illegal or defective.
Appeals in civil cases lie in the High Court in any case decided by a Subordinate Court but not
where an order was passed with the consent of all the parties.
An appeal to the High Court from an appellate decision of the Resident Magistrate’ s Court is
final.
When a person has been convicted by a Court Martial, he may, with the leave of the High Court,
appeal to the High Court against the conviction, the sentence or both. It must be lodged within 40
days of the conviction or sentence of the Court Martial.

8) Matrimonial Causes
The Court exercises jurisdiction in matters affecting dissolution and nullity of marriages.In
exercise of its matrimonial jurisdiction, the Court issues orders for:-
i. Dissolution of marriage
ii. Nullity of marriage
 iii. Separation and maintenance (alimony)
iv. Custody, adoption and guardianship
v. Spouse property e.t.c

9) Succession Matters
The High Court has jurisdiction to hear any application and determine any dispute and pronounce
such orders as may be expedient in matters of the administration of a deceased person’ s estate,
whether testate or intestate.

NOTE:
The High Court shall not have jurisdiction in matters reserved for the exclusive jurisdiction of the
Supreme Court.

The High Court must try cases of Treason, Misprision of treason and murder, while the other
serious offences may be tried by Chief Magistrate or Senior Principal Magistrate.
The High Court can also grant leave to an appeal out of time with sufficient reasons. Conversely,
the Court has powers to summarily reject an appeal, but the appellant or his advocate must have an
opportunity of being heard in support of the appeal.
Under Section 354 of the CPC, the High Court can also order a re-trial where:-
 The trial is illegal or defective
 The accused had not had a satisfactory trial
 It is in the interests of justice and no injustice is likely to be caused to the accused.

RESIDENT MAGISTRATE'S COURT

Establishment
The Resident Magistrate's Court is constituted by Section 3 (1) of the Magistrate's Courts Act
which provides that 'there is hereby established the Resident Magistrate's Court, which shall be a
court subordinate to the High Court and shall be duly constituted when held by a Chief Magistrate,
a Senior Principal Magistrate, a Principal Magistrate, a Senior Resident Magistrate or a Resident
Magistrate'.

Civil Jurisdiction
The civil jurisdiction of the Resident Magistrate's Court is as follows:
Court held by: Value of Subject Matter
1. Chief Magistrate: 7,000,000
2. Senior Principle Magistrate: 5,000,000
3. Principle Magistrate: 4,000,000
4. Senior Resident Magistrate: 3,000,000
5. Resident Magistrate: 2,000,000
The Chief Justice is empowered, by notice in the Gazette, to increase the above mentioned limited
jurisdiction.

Criminal Jurisdiction
The Chief Magistrate, Senior Principal Magistrate, Principal Magistrate or Senior Resident
Magistrate may adjudicate on felonies and award the following sentences as prescribed in Section
24 of the Penal Code:-
 Death
 Imprisonment
 Detention under the Detention Camp Act
 Fine
 Forfeiture
 Payment of compensation
 Any other punishment provided by this Code or any other law

Resident Magistrate
May adjudicate only on misdemeanours
These offences include:-
 Preparation to commit a felony
 Theft
 Stock theft

 Handling stolen goods

Criminal jurisdiction
Fine of Kshs. 20,000
Imprisonment term of (7) year

Jurisdiction in customary law

As conferred by Section 2 of the Magistrates Courts Act.

District Magistrates Courts

Establishment
District Magistrate's Courts are established for each district in Kenya by Section 7 of the
Magistrate's Courts Act 1967.

Constitution
Section 7(1) of the Act provides that a district magistrate's court 'shall be duly constituted when
held by a district magistrate who has been assigned to the district in question by the Judicial
Service Commission'.
Territorial Jurisdiction
Section 7(3) of the Act provides that 'a district magistrate's court shall have jurisdiction throughout
the district in respect of which it is established'. However, the Chief Justice may, by notice in the
Gazette, extend the areas of jurisdiction of a district magistrate by designating any two or more
districts a joint district.

Criminal Jurisdiction
The District Magistrates' Courts are empowered to deal with offences under the provisions
specified in the following Acts
Cap. 121 Liquor Licensing Act.
Cap. 122 Traditional Liquor Act.
Cap. 128 Chief's Authority Act.
Cap. 246 Malaria Prevention Act.
Cap. 294 Trespass Act.
Cap. 300 Registered Land Act.

The criminal jurisdiction of the district magistrate's courts is subject to the following new limits:
Class Fine Imprisonment
1. First Class Kshs. 20,000 7 years
2. Second Class Kshs. 10,000 2 years

The criminal jurisdiction of any magistrate may be increased by the Judicial Service Commission
by notice in the Gazette.
Note: Section 10(1) of the Magistrate's Courts Act provides that any person who is convicted of an
offence on a trial held by a magistrate's court of the third class may within fourteen days appeal
against his conviction or sentence, or both, to the Resident Magistrate's Court. There is no right of
appeal for a person who pleaded guilty and was convicted on the plea, except as to the legality or
extent of the sentence.
Where a person charged with an offence has been acquitted the Attorney General may appeal
against the acquittal.

Section 11 (1) of the Magistrate's Court Act provides that 'any person who is aggrieved by an order
of a magistrate's court of the third class made in proceedings of a civil nature may appeal against
the order to a magistrate's court of the first class'. The appeal must be made within twenty-eight
days after the date of order appealed against.

KADHI'S COURT
Establishment
The Kadhi's Courts Act, 1967, S.4 (1) as amended by the Statute Law (Miscellaneous
Amendments) Act 1986 provides that "in pursuance of Article170 of the Constitution there shall
be established such number of Kadhi's Courts as the Chief Justice may, in consultation with the
Chief Kadhi, determine".
The court is presided over by the Chief Kadhi or a Kadhi.
A person to be appointed as a Chief Kadhi or Kadhi should have the following qualifications.
 Professes to the Muslim religion
 Possesses such knowledge of Muslim law which is applicable to any sect or sects of
Muslims.

Jurisdiction
Article 170 of the Constitution states that 'the jurisdiction of a Kadhi's court shall extend 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."

Criminal Jurisdiction
Kadhi's Courts have no criminal jurisdiction.

NOTE - Section 5 of The Kadhi’ s Court Act provides that nothing shall limit the jurisdiction of
the High Court or of any subordinate Court in any proceeding which comes before it.
This is to mean the Kadhi’ s Courts do not have exclusive jurisdiction and their cases can be heard
by the High Court or other Subordinate Courts.

Appeals from Kadhi’ s Court lie with the High Court.

COURT-MARTIAL
Establishment
Established under the Armed Forces Act (cap 199)
It is a subordinate court.
It is designed for the maintenance of discipline among the members of the Armed Forces.

Article 169 (1) (c) of the Constitution empowers Parliament to establish court martial which shall
have such jurisdiction and powers as may be conferred by any law. Pursuant to this provision, the
Armed Forces Act, S.85 (1) provides that 'a court-martial may be convened by the Chief of
General Staff or by the Commander'.
Part Five of the Act creates Service Offences i.e. crimes that can only be committed by members of
the Armed Forces.
They include:-
i. Treachery – Treason committed by members of the armed forces.
ii. Cowardice
iii. Offences arising out of service
iv. Mutiny and insubordination
v. Disobedience of lawful orders from superiors
vi. Absence and desertion without leave
vii. Offences relating to maligning
viii. Drunkenness and fighting
ix. Rowdiness and quarrelling
x. Offences relating to property belonging to armed forces

Composition
The Court Martial is composed of:-
A presiding officer (who must not be below the rank of a Major) and not less that two other
members,
If an offence attracts death penalty, then there shall be a presiding officer and not less than four
other members
Except with the written consent of the A.G, there shall be a Judge Magistrate or Advocate(must be
advocates of 5 years standing) to give advice on technical matters.
The Court may impose the following sentences:-
 Dismissal
 Reduction of Rank
 Capital punishment
 Reprimand
 Fines e.t.c.

The court-martial is an ad hoc court, it is convened from time to time to try any person who has
committed an offence which, under the Section 84 of the Armed Forces Act, is triable by a court
martial. The court is dissolved as soon as the trial is over.

Appeals
Section 115 of the Armed Forces Act allows a person who has been convicted by a court-martial to
appeal to the High Court either against the conviction, sentence or both. The Attorney General
may also appeal to the High Court within forty days of an acquittal.

SPECIAL COURTS
In addition to the courts dealt with above, there exist in Kenya a number of other institutions which
are called "courts" or "tribunals", but which do not form part of the Kenya judicial system. They
are called "courts" because they exercise judicial or quasi-judicial powers by hearing particular
types of disputes or cases.
Technically, however, these institutions are not courts because they do not administer the law.
For example, when a trade union refers a dispute between its members and their employers to the
Industrial Court, the Court will settle the dispute by following a procedure which approximates to
the procedure followed in a court of law. This is done primarily as a means of ensuring that each
of the parties to the dispute will be satisfied that it has been given a fair opportunity to present its
case. However, if the court decides to award a salary increase for the employees, it would not be
applying, or administering, a rule of law. This is so because there is no legal rule which contains,
or provides a mechanism for determining, the salary scales for any class of workers in Kenya.
Additionally, the decision cannot be challenged by recourse to the appellate jurisdiction of any of
the courts within the judicial system.

The major examples of such tribunals are:

 The Industrial Court
 Business Premises Tribunal
 Land Tribunal
 Rent tribunal
 Cooperative Tribunal e.t.c

Advantages of Tribunals
1. Speed - Decisions are fast because the tribunals are not over-burdened with work.
2. Cheap - The cost of proceeding is lower compared to that of the ordinary courts.
3. Flexibility – Have some discretionary powers and not bound by the doctrine of precedent.
4. Informality – Are relatively free from legal technicalities which characterise ordinary
courts
5. Expert knowledge – The Judges or Chairmen of the tribunals are experts in respective
fields.
6. Privacy – Unlike ordinary Courts, proceedings are held only in the presence of interested
parties.
7. Policy and other considerations – They incorporate the policies of relevant industry in the
decision making process hence the decisions are more balanced.

Disadvantages of Tribunals
i. They are sometimes held in private thus the basic requirements of justice may not be
fulfilled.
ii. In most cases, parties are not permitted to be represented by advocates, thus they are not
sure
of their legal rights procedures to follow.
iii. The right to appeal is limited in most of the cases.
iv. The discretion of the tribunal is sometimes so wide that their decisions may be inconsistent
or illegal.
v. The official do not act impartially in most of the cases.

(i) The Industrial Court; (Established by the Industrial Court Act No 20 of 2011)
Establishment of the Court
Section 4. (1) In pursuance of Article 162(2)(a) of the Constitution, there is established the
Industrial Court for the purpose of settling employment and industrial relations disputes and the
furtherance, securing and maintenance of good employment and labour relations in Kenya.

(2) The Court shall be a superior court of record with the status of the High Court.

(3) The Court shall have and exercise jurisdiction throughout Kenya.

Composition of the Court

Section 5. (1) The Court shall consist of —

(a) The Principal Judge; and

(b) Such number of Judges as the President may, acting on the recommendations of the Judicial
Service Commission, appoint.

(2) The Principal Judge shall be elected in accordance with the procedure prescribed in Article
165(2) of the Constitution.

(3) The Principal Judge shall hold office for a term of not more than five years and shall be
eligible for re-election for one further term of five years.

(4) The Principal Judge shall have supervisory powers over the Court and shall be answerable to
the Chief Justice.

(5) In the absence of the Principal Judge or in the event of a vacancy in the office of the Principal
Judge, the Judges of the Court may elect any other Judge to have and exercise and perform the
powers and functions of the Principal Judge, and who shall be deemed to be the Principal Judge.

Jurisdiction of the Court

Section 12. (1) The Court shall have exclusive original and appellate jurisdiction to hear and
determine all disputes referred to it in accordance with Article 162(2) of the Constitution and the
provisions of this Act or any other written law which extends jurisdiction to the Court relating to
employment and labour relations including —

(a) Disputes relating to or arising out of employment between an employer and an employee;

(b) Disputes between an employer and a trade union;

(c) Disputes between an employers’ organisation and a trade unions organisation;

(d) Disputes between trade unions;

(e) Disputes between employer organizations;

(f) Disputes between an employers’ organisation and a trade union;

(g) Disputes between a trade union and a member thereof;

(h) Disputes between an employer’ s organisation or a federation and a member thereof;

(i) Disputes concerning the registration and election of trade union officials; and

(j) Disputes relating to the registration and enforcement of collective agreements.

(2) An application, claim or complaint may be lodged with the Court by or against an employee,
an employer, a trade union, an employer’ s organisation, a federation, the Registrar of Trade
Unions, the Cabinet Secretary or any office established under any written law for such purpose.

(3) In exercise of its jurisdiction under this Act, the Court shall have power to make any of the
following orders —

(i) Interim preservation orders including injunctions in cases of urgency;

(ii) A prohibitory order;

(iii) An order for specific performance;

(iv) A declaratory order;

(v) An award of compensation in any circumstances contemplated under this Act or any written
law;

(vi) An award of damages in any circumstances contemplated under this Act or any written law;

(vii) An order for reinstatement of any employee within three years of dismissal, subject to such
conditions as the Court thinks fit to impose under circumstances contemplated under any written
law; or

(viii) Any other appropriate relief as the Court may deem fit to grant.

(4) In proceedings under this Act, the Court may, subject to the rules, make such orders as to
costs as the Court considers just.
(ii) The Rent Tribunal
Established under section 4(1) Rent Restrictions Act.
It is presided over by a Chairman or deputy Chairman (Who must be advocates of 5 years
standing).
The purpose of the tribunal is to determine reasonable rent for houses and impose some restrictions
regarding dwelling houses.
The tribunal has powers to settle disputes between Landlord and tenants in dwelling houses other
than;-
 Exempted houses
 Dwelling houses let on service tenancy
 Dwelling houses with standard rent not exceeding Kshs. 2,500 per month.

The decision of the tribunal is enforceable by the Subordinate Courts.

All appeals lie at the High Court.

Powers and functions of the tribunal

1. To assess standard rent of premises either on its own motion or on application by a party to
a dispute.
2. To determine the date from which such rent is payable.
3. To apportion service charge between tenants where such services are shared.
4. To facilitate vacant possession of premises
5. To facilitate recovery of arrears of rent by the Landlord
6. Permit levy for distress for rent.
7. To employ valuers, clerks and other officials to enable it discharge its mandate or
obligations

(iii) The Business Premises Rent Tribunal.

Established under section 11 of the Landlord and Tenants (Shops, Hotels and Catering
Establishments) Act (cap 301)
It has power to settle disputes between landlord and tenants relating to business premises and
which are subject to a controlled tenancy.
The A ct defines a “ controlled tenancy” as a shop, hotel or catering establishment which:
 Has not been reduced to writing
 Has been reduced to writing but
1. Is for a period not exceeding 5 years
2. Contains provisions for termination other than for breach of contract within 5 years
from the commencement date.

Composition
Presided over by a Chairman appointed by the Minister and must be an advocate of three years
standing.
It also has two other members who need not be advocates.
The decisions of the tribunal are made on the majority vote, and shall be enforced by a Subordinate
Court in some way as a court decree or order.
An appeal lies to the High Court within 30 days of the decision.

Powers and Functions of the Tribunal

1. To determine whether a tenancy is a controlled tenancy or not
2. Determine or vary the rent payable in respect of a controlled tenancy
3. Fix the amount of service charges if required as per agreement in respect of controlled
tenancy.
4. Make orders for the recovery of possession / for the payment of arrears of rent.
5. Permit levy for distress for rent.
6. Award compensation for any loss incurred by a tenant on the termination of the tenancy
7. To employ valuers, clerks and other officers.
8. Vary or rescind its orders.

Land Dispute Tribunals

Established under the Land Disputes Tribunal Act
The tribunal exists in every administrative District in Kenya.

It is composed of:
1. A Chairman appointed by the Minister from a panel of elders appointed by the District
Commissioner.
2. Two or Four elders selected by the D.C from the same panel.

It has powers to solve disputes of civil nature relating to:-

 Division boundaries to land including land held in common.
 Claim to occupy or work on land.
 Trespass to land
 Adjudication and distribution of land
 Inheritance of land within its jurisdiction.

PEOPLE IN THE JUDICIARY

Magistrates
They are appointed by the Judicial Service Commission in terms of the Constitution which can also
discipline and fine them.
To be qualified for appointment as a magistrate” -
1. One must be an advocate of the High Court of Kenya, who has two year’ s experience or
2. Have held an equivalent qualification e.g. Barristers or Solicitors of the Supreme Court of
England or Wales

Unlike Judges, magistrates do not have security of tenure.

Judges
Judges of the High Court of Kenya are called "Puisne judges".

All judges are appointed by the president in accordance with the advice of the Judicial Service
Commission.

Qualifications
To qualify for appointment as a judge of the High Court a person must either be:
1.
2. Hold a law degree from a recognised university, or possess an equivalent qualification
in a commonwealth jurisdiction
3. An advocate of the High Court for ten years standing or
4. At least ten years’ experience as a professionally qualified magistrate.

A judge must take and subscribe the oath of allegiance and any oath as may be prescribed by
Parliament, before taking duties. All judges retire at the age of 70 and enjoy some security of
tenure of office.
Under Article 168 of the Constitution a judge can only be removed from office on the ground of

i. A breach of a code of conduct prescribed for Judges by an Act of Parliament,

ii. Inability to discharge the functions of his office arising from mental of physical instability,
iii. Bankruptcy
iv. Incompetence
v. Gross misconduct or misbehaviour.

Judges of Appeal
A "judge of appeal" is a Judge who is appointed to the Court of Appeal,

THE CHIEF JUSTICE

The office of the Chief Justice is created by the constitution

Appointment
Under Article 166 of the Constitution the Chief Justice is appointed by the President in accordance
with the recommendation of the Judicial Service Commission, and subject to the approval of the
National Assembly.

Functions
Administrative Function
He is the principal administrative officer of the judiciary
He is the chairman of the Judicial Service Commission
He determines where the High court sits
He appoints the duty judge
Assigns cases to judges
He is in charge of discipline

Judicial Function
As a judge of the Supreme Court, the High Court and Court of Appeal he participates in the
adjudicatory process.

(c) Legislative Function

The chief justice exercises delegated legislative power. He is empowered to make law to facilitate
the administration of Justice. Under the Kadhi’ s Court Act, Judicature Act and the Magistrate
Court Act he is empowered to make rules to regulate administration of justice in subordinate
courts.
He is empowered by the Constitution to make rules to facilitate the enforcement of fundamental
rights and freedoms of the individual.

(d) Political function

The chief justice administers the presidential oath to the person who is elected as president. He
represents the judiciary in all state functions.

(e) Legal education and profession

The chief justice is the chairman of the council of legal education.
He admits advocates to the ban.
He issues practicing certificates to advocates.
He appoints commissioners for oath and Notaries Public.

(f) Enhancement of Jurisdiction of Magistrates

Under the provisions of the magistrate Courts Act, the Chief Justice is empowered to enhance or
increase the civil jurisdiction of the Resident Magistrates Court.

HIGH COURT REGISTRARS

These are magistrates who in addition to judicial functions perform administrative duties. They are
appointed by the Judicial Service Commission. They are administrative and accounting officers.
They assist the Chief Justice in the administration of the judicial department and are answerable to
the Chief Justice. However the High Court Registrar is the custodian of the Roll of Advocates.

KADHI
The office of the chief Kadhi and Kadhi are created by Article 66(1) of the constitution. The chief
Kadhi and all Kadhis are appointed by the judicial service commission. To qualify for
appointment one must:

Profess Muslim faith.

Possess such knowledge of Muslim law applicable to any sect of sects of Muslims which in the
opinion of the J S C qualify one for appointment.

Kadhis retire at 55 years.

They preside over Kadhis Courts only.

ATTORNEY GENERAL
The office of the Attorney general is established the Constitution. It is an office in the public
service.

Appointment
The Attorney General is appointed by the president, with the approval of the National Assembly.
To qualify for appointment one must be an advocate of the High Court or a Superior Court Judge
of not less than 15 years standing.

The Attorney General retires at such age as may be prescribed by the parliament. He enjoys
security of tenure of office. He can only be removed for incapacity or misbehaviour provided a
tribunal appointed by the president so recommends after investigation of the allegations.

Powers of the Attorney General

The Attorney General is empowered to:

(a) Institute and undertake criminal proceedings against any person before any court other than
a court martial for any alleged offence.

(b) Take over and continue any criminal proceedings instituted by any other person or body.

(c) Discontinue as any stage before judgement is delivered any criminal proceedings instituted
or undertaken by himself or any other person or body, by entering the so called
NolleProsequi “ Do not prosecute”

(d) Order the commissioner of police to investigate any alleged or suspected criminal acts.
The commissioner must oblige and report to the Attorney General.

Functions
i. The Attorney General is the principal legal adviser to the government of Kenya
ii. He occupies a ministerial post in the cabinet
iii. Must act independently in the discharge of his duties
iv. Drafts all government bills
v. He is an ex-officio member of the National Assembly
vi. Represents the state in all cases
vii. He is a public prosecutor
viii. Most senior lawyer (head of the bar)
ix. Services legal needs of other government departments
x. Member of the judicial service commission
 xi. Member of the Advisory Committee on prerogative of mercy

Advocates
Under sec 3(1) of the Interpretation and General Provisions Act cap 2 and sec 2 of the Advocates
Act (1989) an advocate is a person whose name has been duly entered as an advocate in the Roll
of Advocate.

An advocate has also been defined as a person who has been admitted as such by the Chief Justice.
The law relating to Advocacy is contained in the Advocates Act.

Qualifications
To qualify for admission as an advocate one must
Be a Kenyan citizen
Possess a law degree from a recognized university
Satisfy the council of Legal Education Examination Requirements.
Has attended as a pupil with a senior advocate or the A.G’ s chambers for a period of six months

Procedure for Admission

A person must make a formal petition to the chief justice through the Registrar of the High Court.
A copy of the petition must be delivered to the Council of Legal Education.
A notice of the petition must also be given. The petition must be published in the Kenya Gazette.
The petition is heard by the Chief Justice and subsequently the petitioner takes the oath of office
and signs the role of advocates.

To practise law one must have a practicing certificate.

Duties of an Advocate
Duty to the Court
As an officer of the court an advocate is bound to assist in the administration of justice. He must
advice evidence, the law correctly each time he appears before the court.

Duty to Client
He is bound to urge his clients’ case in the best manner possible. He owes a legal duty of care to
the client and is liable in damages for professional negligence.

Duty to the Profession

He is bound to maintain the highest possible standard of conduct and integrity by obedience to the
law and ethics of the profession.

Duty to the Society

As a member of the society he is bound to take part in its social and political and economic
development.

THE LAW SOCIETY OF KENYA

Establishment
It is established by sec 3 of the Law Society of Kenya Act Cap 18. It is a body corporate by the
name Law Society of Kenya with perpetual succession, common seal, with power to sue and be
sued in its name.

Membership
It consists of
Advocates
Special membership and
Honorary membership

The affairs of the society are managed by a council elected by the advocates.

Objects of the Law Society

Under sec 4 of the Act the objects of the society as established are;
i. To maintain and improve the standards of conduct and learning of the legal profession in
Kenya.
ii. To facilitate acquisition of legal knowledge by members of the legal profession and others.
iii. To assist the government and the courts in all matters affecting legislation and
administration of law in Kenya.
iv. To represent, protect and assist members of the legal profession in respect of the conditions
overactive and otherwise
v. To protect and assist the public in all matters touching or incidental to law
vi. To acquire hold, develop or dispose of moveable or immovable property
vii. To raise or borrow money for its objectives
viii. To invest and deal with monies of the society
ix. To do all other things incidents to or conclusive to the attainment of its objects.

THE JUDICIAL SERVICE COMMISSION

It is established by Article 171 of the Constitution.

The Commission shall consist of:

a) The Chief Justice who shall be the chairperson of the Commission,
b) One Supreme Court Judge elected by the judges of the Supreme Court,
c) One Court of Appeal Judge elected by judges of the Court of Appeal,
d) One High Court Judge and one magistrate, one woman and one man, elected by the
members of the association of judges and magistrates,
e) The Attorney General,
f) Two advocates one man and one woman, each of whom has 15 years’ experience, elected
by the members of the statutory body responsible for the professional regulation of
advocates;
g) One person nominated by the Public Service Commission, and
h) One woman and one man to represent the public, not being lawyers, appointed by the
President with the approval of the National Assembly.

The Chief Registrar of the Judiciary shall be the Secretary to the Commission.

Functions of the Judicial Service Commission,

 a. Recommend to President persons persons to be appointed as judges,
b. Review and make recommendations on the conditions of service of
i. Judges and judicial officers other that their remuneration, and
ii. The staff of the judiciary.
c. Appoint, receive complaint against, and investigate and remove from office or otherwise
discipline registrars, magistrates, other judicial officers and other staff of the Judiciary, in a
manner prescribed by an Act of Parliament.
d. Prepare and implement programmes for continuing education and training of judges and
judicial officers, and
e. Advise the national government on improving the efficiency of the administration of
justice.

ALTRNTIVE DISPUTE RESOLUTION METHODS (ADR methods)

ADR methods are used in place of litigation to settle civil disputes

Although ADR processes are dissimilar, they share a number of common features:-
1. They are informal - by comparison to the process of litigation, ADR processes are not
bound by strict rules or procedures nor are they controlled by technicalities

2. Flexible – Can be adopted to suit the needs of particular types of disputes in different
situations e.g. Labour, Commercial, Environmental issues International as well as out of
court situations

3. Voluntary – In the sense that the disputants are not compelled to enter in to the process.

4. Interest based – The interests of the disputants are allowed to predominate rather than
their rights in law.

5. Relational - Emphasises on the relationships of the disputants and are therefore highly
suited for disputed between persons who are in a continuing or long term relationship. E.g.
between the directors of a company.

6. Future oriented – Apart from the case of full arbitration, ADR processes focus on blame
for past events but rather concentrate on establishing or re-establishing the future
relationship between disputants.

7. Consensual – They function on the basis that the outcome or results of the process is
reached through the consent of both disputants.

Types of ADR methods

 Conciliation
Parties agree to utilise the services of a conciliator who then meets with the parties differently in an
attempt to resolve their differences. They do this by lowering tension, improving communication,
interpreting issues, improving communication, providing technical assistance, exploring potential
solutions and bringing a negotiated settlement.

 Mini-trials
This is a hybrid process that structures private negotiations by combining elements of negotiation,
mediation and litigation in a new way. Each party presents its case. Officials from both sides
confer to evaluate the case, and come to a settlement failing which the presiding officer gives view
of how the case would be resolved in a court. The parties discuss the case, and if there is no
settlement, the case goes back to court.

 Negotiation
An ADR process which involves interaction between disputing parties without compulsion by a
third party. Theparties endeavour to come to come to an interdependent joint decision concerning
the terms of the agreement on the issues between them. It enables disputing parties to come to an
agreeable and acceptable settlement usually by a compromise. It proceeds through exchange of
information thereby permitting a learning process by which each party formulates, modifies and
readjusts expectations, preferences and proposals.
 Mediation
This is a dispute resolution mechanism in which a neutral and impartial third party known as a
mediator assists the disputing parties to avoid or overcome an impulse or if the parties are unable to
negotiate. It is merely an intervention into a dispute through negotiation by an acceptable impartial
third party, with no authoritative decision making powers. The mediator only assists the parties to
reach their own agreement. It is the least intrusive form of third party involvement in a dispute.

 Arbitration e.t.c.

ARBITRATION
This is a dispute resolution mechanism whereby disputes are settled out of court by arbitral
tribunals or arbitrators who make arbitral awards as opposed to judgement.

The law relating to arbitration in Kenya is contained in the Arbitration Act 1995. This act repealed
the Arbitration Act cap 49. The Act applies to both domestic and international arbitration.

Under sec 3(1) of the Act an Arbitration Agreement is an agreement by parties to submit to
arbitration all or certain disputes arising between them. An arbitral tribunal means a sole
arbitrator or a panel thereof.
An arbitration agreement may take the form of clause in the contract or a separate agreement
between the parties.

Essentials of Arbitration Agreement

1. It must be in writing
An arbitration is contained in writing if it is contained in;-
a) A document signed by the parties
b) An exchange of letters telex telegram or other means of telecommunications which
provides as record of the agreement.
 c) An exchange of statements of which claims and defence in which the existence of an
agreement is alleged to by one party and not denied by other party

2. It must have all the essentials of a valid contract

Since arbitration is an agreement which is enforceable it is essential that it has all the essentials of a
valid contract. E.g. there has to be consensus ad idem, it must be clear and unambiguous, must be
intended to be enforceable e.t.c.

3. Should not include any clause or provision which expressly deprives the Court of its
jurisdiction. Such a clause is void on public on public policy. But a making refence to
arbitration a condition precedent to the right to sue is valid and enforceable. This is
known as the “ Scott and Avery Clause” .

4. Must be legal
Courts can not enforce disputes arising from base actions

Methods of Reference to Arbitration

A dispute may be referred to arbitration by:
 The parties in accordance with the agreement
 The court if the parties to the case so consent
 By statute where a dispute has arisen there under

Advantages of Arbitration
(a) Speed: It is a faster method of dispute resolution

(b) Convenient: Parties are free to determine

i. The number of arbitrators
ii. Venue of proceedings
iii. Language to use
iv. Law applicable

(c) Informality: Arbitral proceedings are free from legal formalities which characterize the
courts of law. They are less technical in approach.

(d) Expertise and specialization:The parties to the dispute have an opportunity to appoint the
most qualified or specialized person to determine their dispute.

(e) Cheap: It costs less to see a dispute through arbitration

(f) Privacy: Arbitral proceedings are conducted in private, free from undue publicity

(g) Flexibility: Arbitral tribunals are not bound by previous awards. This provides room
for exploration.

(h) User friendly/less acrimonious: Arbitration is less acrimonious and tunes down enmity
 between the parties.

Disadvantages of Arbitration
1. Arbitral awards have no precedential value, like they cannot be relied on in subsequent
proceedings
2. If a difficult question of law arises, it may become necessary to refer to a Court of law for
guidance and in such a case it must be obvious that it would have been speedier and
cheaper to go to law in the first instance.
3. Arbitration s characterized by the danger of the likelihood of miscarriage of justice
particularly where the arbitrator is not a legal expert
4. Arbitrators exercise unregulated discretion and hence the danger of abuse of power
5. Arbitrators are more susceptible to manipulation than judges and magistrates
6. Lack of uniformity since each arbitrator decides his reference in his own way
7. Arbitration is limited in scope since it can only apply in civil suits

Effect of an arbitration agreement

The arbitration agreement, as a binding contract between the parties, will be followed and enforced
as any other contract.
Where the parties agree to submit their disputes to arbitration before commencing any legal
proceeding, it is prima facie the duty of the Court to give effect to arbitration agreement.

Section 6 provides that if a party to an arbitration agreement commences any legal proceedings in
respect of any matter covered by the agreement, the other party to such legal proceedings am
yappy to the Court to stay the proceedings. If the Court is satisfied that there is sufficient reason
why the matter should not be referred in accordance with the arbitration agreement, it may make an
order staying the proceedings.

Conditions for stay of legal proceedings

In order that the stay may be granted, the following conditions must be fulfilled.
1. There must be a valid and subsisting arbitration agreement between the parties.

2. The subject matter in question in the legal proceedings must be within the scope of the
arbitration agreement, i.e. the subject matter of the reference to the reference to the
arbitration must be the same as the subject matter of the legal proceedings.

3. The application must be made by a party to the arbitration agreement or by some person
claiming under him, i.e. the heirs or legal representatives.

4. The applicant must have taken no steps in the proceedings. He must make the application at
the earliest stage of the proceedings i.e. before filing a written statement or taking any step
in the proceeding.

5. The application must be to the judicial authority before which the proceedings are pending.

6. The applicant must satisfy the Court that he was at the time when the proceedings
 commenced and is still ready and willing to do all things necessary for the proper
conduction of the arbitration. This readiness and willingness must exist not only when
application for stay is made, but also at the commencement of the legal proceedings.

7. The Court is satisfied that there is no sufficient reason why the matter should not be
referred. The burden of proof lies upon the party opposing the stay. He must satisfy the
Court that there is good reason for proceeding with the action. The granting or refusing a
stay lies within the discretion of the Court

Provisions Implied in every Arbitration Agreement

In every arbitration agreement certain provisions are implied in so far as they ate not expressly
excluded by the parties.

These provisions are to be found in the Act as follows

i. Refence is to a single arbitrator unless otherwise expressly stated.

ii. If reference is to two arbitrators they shall appoint an umpire immediately after they are
appointed.

iii. If the arbitrators give notice that they cannot agree, the umpire may enter on the reference.

iv. Parties shall submit to be examined on oath and shall produce all required documents

v. Witness may be examined on oath

vi. The award is final and binding on the parties

vii. The incidence of costs is to be settled by arbitrators or umpire

viii. Arbitrators or umpire may order specific performance of any contract , other than one
relating to land or an interest in land

ix. Arbitrators or umpires may make interim awards

Appointment of Arbitrators
Under sec 12(1) the parties are free to agree on the procedure of appointing arbitrators.

Under sec 31(1) the parties are free to determine the number of arbitrators

Arbitrators may be appointed by

 The parties to the dispute
 An Act of Parliament e.g. the Co-operative Societies Act provides that disputes as to co-
 operative societies should first be referred to arbitration
 A third party or body appointed by the parties
 High Court upon application in the following circumstances
a) Where the parties fail to agree as to who to appoint as the arbitrator
b) Where either party has failed to appoint its arbitrator within thirty days of a receipt of a
request by the other party to do so.
c) Where the two arbitrators appointed fail to appoint a third

Once appointed an arbitrator must enter upon its duties with reasonable dispatch. However he may
be removed from the office;
For inability to perform
Failure to act without undue delay

However, the arbitrator is free to withdraw from office.

Matter which can be referred to Arbitration

All disputes between parties relating to private rights or obligations which Civil Courts may take
cognisance of Civil Procedure Act Cap 21 maybe referred to arbitration, unless a refence is
opposed to public policy or forbidden by a statute
Some of such matters include:
 Time-barred claims
 Determination of damages in case of breach of contract
 Disputes regarding complementary and dignity e.t.c.

Matters which cannot be referred to arbitration

A. Matrimonial matters e.g. divorce, restitution of conjugal rights e.t.c.
B. Testamentary matters like the validity or genuineness or otherwise of a will.
C. Insolvency matters
D. Matters relating to public charities and charitable trusts
E. Lunacy proceedings.
F. Matters of criminal nature or based on illegal transactions.

Powers of the Arbitral Tribunal

1. To determine whether it has jurisdiction to entertain a dispute
2. To provide interim remedies, at the request of either parties
3. To require either parties to provide security
4. To determine the admissibility of evidence
5. To appoint experts on specific issues of the dispute etc.

The Arbitral Award

The decision of an arbitral tribunal is referred to as an arbitral award. Where the terms of
employment so require the arbitrator must make an interim award. However, in all cases he must
make a final award which must be written and signed by all arbitrators. It must state the reasons of
the decisions and the date of place of its making.

A copy of the award must be delivered to each party.

Essential of a valid award
1. It must be in writing
2. Must comply with any special directions that appear in the arbitration agreement.
3. The award must be certain in meaning
4. The award must be directed to all matters referred
5. The award must be final
6. It must be legal and capable of physical performance
7. Must be dated and signed by all the arbitrators and, generally at the same time.

Enforcing the Award

An award can be enforced in one of the following ways:
 As a judgement in accordance with the Arbitration Act
 By attachment
 By suing on the Award

Termination of Arbitral Proceeding

Arbitral proceedings may be terminated in any of the following ways
 By the final award of the arbitrator
 If the claimant withdraws the case
 If the parties mutually agree
 By the arbitrators order
 By the High Court if sufficient reasons arise e.g. where the arbitrator is guilty of
impartiality

Challenging an arbitral Award

A party dissatisfied by an arbitral award any challenge it in the High Court and the High Court
may set it aside if it is satisfied that;
1. One of the parties to the arbitration agreement had no capacity to contract
2. The arbitration agreement was not valid under the law
3. The award is contrary to public policy in Kenya
4. The arbitrator or umpire has misconducted himself
5. The arbitral tribunal was not appointed in accordance with the agreement
6. The applicant (dissatisfied party) was not afforded an opportunity to participate in the
appointment of the arbitrator
7. The arbitral award deals with a dispute not contemplated by the parties.