KSL PLS 1 2011 LESSON 7 THE DOCTRINE OF PRECEDENT AND STARE DECISIS

CHARLES B G OUMA LLB MLB

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CHARLES B G OUMA LLB MLB ADJUNCT FACULTY

LESSON CONTENT
1. 2. 3. 4. 5. 6. 7. 8. The meaning of the doctrine The history of the doctrine The rationale for the doctrine The application of the doctrine Advantages of the doctrine Disadvantages of the doctrine Importance of law reporting Citation of cases and statutes
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Lesson goal
To enable you understand the role of judicial decisions as an important source of law To enable you appreciate the use of the doctrine of precedent in the application and development of
Case law Statute law

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LESON OBJECTIVES
At the end of this lesson you should be able to
1. State the meaning of the doctrine of precedent and stare decisis 2. Narrate history of the doctrine 3. Explain rationale for the doctrine 4. Describe application of the doctrine 5. State the advantages of the doctrine 6. State the disadvantages of the doctrine 7. Explain importance of law reporting to the application of the doctrine
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The meaning of the doctrine

Civil suits are based on some identifiable legal wrong- a cause of action Criminal case are based on some identifiable breach of some penal statute a charge In making judicial decisions, courts apply the law to factual situations In the process they enunciate some legal principle which applies to the specific case before them and to some analogous fact situations
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The meaning of the doctrine

In most legal systems these decisions of the courts play an important role in the administration and adaptation of the law It is usually asserted that they play a uniquely important role in the common law system, a role summarized in the rubrics doctrine of precedent and stare decisis . (Harvey 1975)

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The meaning of the doctrine

stare decisis et non Quieta Movere stand by what has been decided and do not unsettle what has been established Stare decisis means that a court is bound to follow the previous decisions of a court of higher or (generally) coordinate status if the facts of the previous case are substantially similar to the facts of the subsequent case
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History of the doctrine

After the Norman conquest (1066) English monarchs sent travelling judges round the country to administer royal justice The judges mainly applied customs which varied from place to place Eventually the judges began to follow previous decisions and the rules gradually became consistent The rules came to be known as the common law
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History of the doctrine

It is not clear what the legal basis for the applicability of the doctrine in Kenya is During the colonial period colonial judges applied the doctrine in the same way as their counterparts back in England without any questions as to its legal basis Thanks to our colonial heritage this doctrine was exported to and imported into Kenya by the colonial judges and is unquestionably applied by the courts of this country
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History of the doctrine

There are several possible explanations for of its applicability in Kenya
1. The general reception clause, the 1897 EAOIC imported it together with the common law. I.e. we received both the substantive and procedural aspects of the common law 2. The jurisdiction of the High court and its practice and procedure were made analogous to the jurisdiction, practice and procedure Of Her Majesty's Court of Justice in England. Accordingly the local courts must apply the doctrine Like Her Majesty s court would do
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History of the doctrine

3. The 1967 Judicature Act which reproduced the reception clause imported it 4. The 1967 Judicature act also made the jurisdiction practice and procedure of the high court analogous to that of Her Majesty's Court of justice in England 5. Our local courts simply adopted and domesticated it subconsciously without the need for statutory intervention
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Rationale
It comports with common sense The point of departure in problem solution is to see if there exists examples where the problem or similar problems have been tackled before There is a strong case for sticking to tried tested and proven solutions The previous example is a good guide to the solution of the instant problem and will probably be followed
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Application of the doctrine

The reasoning and decisions in the previous cases are not merely considered a good guide. They can be binding on future courts When a court makes a decision the courts of coordinate status should and those of lower status must follow the previous decision when deciding future cases where the facts are substantially similar
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Application of the doctrine

Harvey (1975 ) asks the following questions
1. What is the authoritative element of the previous courts decision that binds future courts? 2. What are the techniques for extracting that authoritative element? 3. What are the courts from whose decisions the authoritative elements ban be extracted? 4. What are the justifications for adherence to earlier decisions and do these justifications respond to the predominant needs of the country ?
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Application of the doctrine-Some common terms

Stare decisis rationibus decidendis or just stare decisis , in short, loosely translates to stand by the things that have been decided let the decision stand Rationibus the reasoning Ratio decidendi- the reasoning of the decision Orbiter dicta- things said in passing Res judicata a thing adjudicated
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Application of the doctrine-the ratio decidendi

What is the authoritative element of the previous decision that is binding on future courts? The authoritative element of the decision is also called the ratio decidendi

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Ratio decidendi

1. 2.

3.

That part of the decision which is binding or persuasive. It is the reason for the decision, or The principle underlying the decision, or That legal proposition which the court has applied to the material facts of the case in order to arrive at its decision.
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Obiter dicta

Other legal argument and statements of principle found in judgements but not forming part of the ratio decidendi. The obiter are not binding on other courts, but may be persuasive. They can only ever be of persuasive value as they do not form part of the matters at issue.

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Illustration- Donoghue v Stevenson [1932] AC 52

A famous House of Lords case in the area of the common law of tort. It is perhaps most well known for the statement of Lord Atkin regarding the existence of a duty of care in Anglo-Australian law. The reasoning in this case has taken root in many countries.
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Illustration- Donoghue v Stevenson [1932] AC 52

The Facts The appellant, May Donoghue, claimed that on 26 August 1928 she drank some of the contents of a bottle of ginger beer, manufactured by the respondent, which a friend had bought for her at a cafe in Paisley, Scotland.
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Illustration- Donoghue v Stevenson [1932] AC 52

When her friend poured the remainder of the bottle's contents into Mrs Donoghue's tumbler, "a snail, which was in a state of decomposition, floated out of the bottle". The bottle being opaque, the snail could not have been detected until the greater part of the contents of the bottle had been poured.

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Illustration- Donoghue v Stevenson [1932] AC 52

As a result Mrs Donoghue alleged that she suffered from shock and severe gastroenteritis. What could Mrs Donoghue do? What remedies in law were available to her?
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Illustration- Donoghue v Stevenson [1932] AC 52

Remedies in Contract or Tort Law? Given that her friend had bought the drink, there was no contract between Mrs Donoghue and the retailer. The friend who did have a contract with the retailer was unaffected by the event and could not seek damages on her behalf.
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Illustration- Donoghue v Stevenson [1932] AC 52

Donoghue instituted proceedings against the manufacturer of the ginger-beer (Stevenson). Liability arose because the manufacturer (respondent) owed the consumer (appellant) a duty to exercise reasonable care (Lord Atkin s neighbour principle).

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Illustration- Donoghue v Stevenson [1932] AC 52

A manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumers life or property, owes a duty to the consumer to take that reasonable care.
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Illustration- Donoghue v Stevenson [1932] AC 52

Neighbour principle

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That rule that you are to love your neighbour becomes, in law, you must not injure your neighbour, and the lawyers question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, in law, is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.ADJUNCT CHARLES B G OUMA LLB MLB
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Different types of precedent

Original precedent Binding precedent Persuasive precedent

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Original Precedent
If a point of law has never been decided before, then whatever the judge decides will form a new precedent for later cases to follow. Donoghue v Stephenson (1932). As there are no past cases for the judge to base his decision on, he is likely to look at cases that are closest in principal and he may decide to use similar reasoning. This way of arriving at a judgment is known as reasoning by analogy .
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Binding Precedent
This is a precedent from an earlier case, which must be followed even if the judge in the later case does not agree with the legal reasoning. A binding precedent is only created when the facts of the second case are sufficiently similar to the original case and the decisions was made by a court which is senior too, or in some cases the same level as, the court hearing the later case
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Persuasive Precedent
These are not binding on the court, however a judge may consider such a precedent and decide that it is the correct principal to follow.

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Operation of the Doctrine of Precedent

Every court is bound by a court above it in the hierarchy. In general, appellate (appeal) courts are bound by their own decisions. (But there are exceptions to this rule, ) The other thing, which is essential, is that lower courts know all the legal reasoning behind decisions of the higher courts. They can only do this if those reasons are properly reported. All decisions from the High Court upwards are properly reported through the system of Law Reporting.
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Some more common terms

1. 2. 3. 4. Distinguishing Overruling Reversing Following

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Distinguishing.
If a judge decides that the material facts of the case in front of him are sufficiently different from the material facts of the case containing the precedent then he is not bound by the precedent

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Over-ruling.
This is where a court in a later case states that the legal rule decided in an earlier case has been wrongly decided. This would normally happen when a court higher in the hierarchy over-rules a decision made by a lower court in a previous case.

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Reversing.
This is where a court higher up the hierarchy over turns the decision of a lower court in the same case. E.g. the Court of Appeal reverses a decision of the High Court

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Following.
Where a higher court agrees with the decision of the later court.

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Operation of the principle in England

House of Lords( Now Supreme Court) 1894 LCC vs LST always bound by its own decisions 1966 Practice statement-may depart from its previous decisions under very limited and exceptional circumstances

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en
Court of appeal Always bound by the decisions of the house of lords Usually bound by its previous decisions but may depart therefrom under certain circumstances Decisions of the Judicial Committee of the Privy Council are of great persuasive value but not binding
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High Court Usually just triers of fact Decisions usually unreported Do not create precedent

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 Eastern African Court of Appeal the predecessor to our court of appeal Used to be bound by the decisions of the JCPC Upon attainment of Republican status, no longer bound Not bound by its own decisions. May depart in rare and exceptional circumstances That is the position of the present court of appeal
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 High Court Bound by the decisions of the court of appeal Not bound by decisions of other High Courts but will treat them as persuasive Not bound by decisions from the commonwealth and other countries

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 Subordinate courts Bound by decisions of the High Court or court of appeal If there is a conflict between a high court decision and a decision of the court of appeal the decision of the court of appeal will be followed

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Advantages of the the doctrine

It achieves consistency It promotes certainty and predictability It introduces objectivity It is a scientific methodology for problem solving- it follows generally accepted, tried tested and proven predetermined rules and procedures It leads to decision making by law not by men
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Disadvantages of the doctrine

Too rigid an application may lead to injustice in particular cases Justice vs finality It can perpetuate wrong decisions It can increase the costs of litigation It can stifle the development of the law

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END OF PRESENTATION
ANY QUESTIONS?

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