SOURCES OF KENYA LAW

1.         SOURCES OF KENYA LAW

1.1  A source of law is the origin of the rule, which constitutes a law, or legal principle.  The phrase `sources of Kenya law' therefore means the origin of the legal rules which constitute the law of Kenya.

The various sources of law of Kenya are identified by the Judicature Azt, Kadhis Court  Act, the Constitution, Hindu Marriage and divorce Act and the Hindu Succession Act.

1.2            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.

S.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".

1.3            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.

1.4  The Hindu Marriage and Divorce Act 1960, S.5 (1) provides that a marriage between Hindus may be solemnized in accordance with the customary rites and ceremonies of either party thereto.

The provision constitutes Hindu custom a source of Kenya law for the specified purposes.

1.5            The Legal Pyramid

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

1

Delegated legislation

NOTE:                                                       

     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.

1.6            STATUTE LAW

This is an Act of Parliament.  This is law made by parliament directly in exercise of legislative power conferred upon it by the constitution.

Section 46(5) of the Kenya Constitution states that "a law made by Parliament shall be styled an Act of Parliament".

1.7            Bills

An Act of Parliament begins as a Bill, which is the draft of law that Parliament intends to make.  Section 46(1) of the constitution states that "the legislative power of Parliament shall be exercisable by Bills passed by the National Assembly".

                        Types of Bills

                        A Bill may be:

(i)    A Government Bill, if it is presented to Parliament by the Government with a view to its becoming a law if approved by Parliament.

(ii)   A Private Members' Bill if it is presented to Parliament by some members, in a private capacity and not on behalf of the Government. 

                        Bills may also be divided into Public Bills and Private Bills.

(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 if it does not seek to alter the general law but rather to confer special local powers.  An example is where a local authority such as a Municipal Council requires power to purchase land compulsorily.

Read More

Nature and Classification of Law: NATURE AND CLASSIFICATION OF LAWThe term “law” ha...

Nature and Classification of Law: NATURE AND CLASSIFICATION OF LAW
The term “law” ha...: NATURE AND CLASSIFICATION OF LAW The term “law” has no assigned meaning.  It is used in a variety of senses.  Though different writers...

Read More

NATURE AND CLASSIFICATION OF LAW

The term “law” has no assigned meaning.  It is used in a variety of senses.  Though different writers have attempted to explain the term, no generally acceptable explanation has been given. Different writers explain the term law from different points of view.  The study of law is referred to as jurisprudence or legal philosophy.

According to Hart Law is a coercive instrument for regulating social behaviour.  Law has also 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.

According to Salmond, law consists of a body of principles recognised and applied by the state in the administration of justice.  Law has also been defined as a collection of binding rules of human conduct prescribed by human beings for obedience of human beings.  Inevitably, therefore law implies rules or principles enforced by courts of law.  Rules of law are binding hence differ from other rules or regulations.  Rules of law are certain.

In summary therefore, law is an aggregate of conglomeration of rules enforced by courts of law at a given time.

Rules of law originate from acts of parliament, customary and religious practises of the people, they may also be borrowed from other countries.

Law and Morality

Morality consists of prescriptions of the society and is not enforceable, however, rules of law are enforceable.  Wrongs in society are contraventions of either law or morality or both.

However, law incorporates a significant proportion of morality and to that extent morality is enforceable.

However, such rules/contraventions are contraventions of law for example murder, rape theft by servant or agent.

Purposes or Functions of Law

(i)    Rules of law facilitate administration of justice.  It is an instrument used by human beings to achieve justice.

(ii)   Law assists in the maintenance of peace and order.  Law promotes peaceful co-existence, that is, prevents anarchy.

(iii)  Law promotes good governance.

(iv)  Law is a standard setting and control mechanism.

(v)        Provision of legal remedies, protection of rights and duties.

Types and Classification of Law

Rules of law may be classified as:

·         Written

·         National and International

·         Public and Private

·         Substantive and Procedural

·         Criminal and Civil

Written Law

These are rules of law that have been reduced into a written form.  They are embodied in a formal document for example 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, Equity.  Their existence must be proved.

National or Municipal Law

These are rules of law operational within the boundaries of a country.  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

It is a body of rules that regulates relations between countries/states and other international persons egg United Nations.  It is based on international agreements of treaties and customary practices of states and general principles.

Public Law

It consists of those fields or branches of law in which the state has an interest as the sovereign egg criminal law, constitutional law, administrative law.

Public law is concerned with the constitution and functions of the various organs of government including local authorities, their relations with each other and with the citizens.  Public law asserts state sovereignty/power.

Private law

It consists of those fields or branches of law in which the state has no direct interest as the sovereign egg law of contracts, law of tout, law of property, law of succession.

Private law is concerned with day to day transactions of legal relationships between persons.  It defines the rights and duties of parties.

Substantive Law

It is concerned with the rules themselves as opposed to the procedure on how to apply them.  It defines the rights and duties of parties and provides remedies when those rights are violated e.g. law of contract, negligence, defamation.  It defines offences and prescribes punishment e.g. Penal Code Cap 63.

Procedural Law

It consists of the steps or guiding principles or rules of practice to be complied with or followed in the administration of justice or in the application of substantive law.

It is also referred to as adjective law e.g. Criminal Procedure code Cap 75, civil procedure Act Cap 21.

Criminal Law

Criminal law has been defined as the law of crimes.  A crime has been defined as an act or omission, committed or omitted in violation of public law egg murder, manslaughter, robbery, burglary, rape, stealing, theft by servant or agent.

All crimes or offences in Kenya are created by parliament through statutes.  Suspects are arrested by the state through the police.  However, individuals have the liberty to arrest suspects.  Offences are generally prosecuted by the state through the office of the Attorney General.

When charged with a particular offence the suspect becomes an accused hence criminal cases are styled as R V Accused.  Under sec 77 of the constitution the person cannot generally be prosecuted for an act or omission which was not defined by law as a crime when committed or omitted.  Under section 77 (2) (a) of the constitution an accused person is presumed innocent until proven or has pleaded guilty.  It is the duty of the prosecution to prove its case against the accused.  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 set free (acquitted). The court must be satisfied that the accused committed offence as charged.  If the prosecution discharges the burden of proof the accused is convicted and sentenced which could take any of the following forms.

(a)                Imprisonment term

(b)               Capital punishment

(c)                Corporal punishment

(d)               Community service

(e)                Fine

(f)                Conditional discharge

(g)                Unconditional discharge

The purpose of criminal is;

·         To ascertain whether or not the crime has been committed.

·         To punish the crime where one has been committed.

Civil Law

Civil law is concerned with violations of private rights in their individual or corporate capacity egg breach of contract, negligence, defamation, nuisance, passing off trespass to the person or goods.

If a person’s private rights are violated, the person has a cause of action.  Causes of action are recognized by statutes and by the common law.  The person whose rights have been allegedly violated sues the alleged wrong doer.  Hence civil cases are styled as Plaintiff v Defendant.  It is his duty of the plaintiff to adduce evidence to prove his case the burden of proof lies on the plaintiff.

The standard of proof in civil cases is on a balance of probabilities or on a preponderance of probabilities.  It must be more probable than improbable that the plaintiff’s allegations are true.  If the plaintiff discharges the burden of proof then he wins the case and is awarded judgement which could take any of the following forms:

(a)                Damage, i.e. monetary compensation

(b)               Injunction

(c)                Specific performance

(d)               Tracing

(e)                Accounts

(f)                Rescission

(g)                Winding up/liquidation

Purpose of civil laws

(i)         Protection of rights and enforcement of duties.

(ii)        Provision of legal remedies as and when a persons rights have been violate

Read More