INTRODUCTION TO BUSINESS LAW

TOPIC 1
MEANING OF LAW, NATURE AND PURPOSE OF LAW
MEANING OF LAW
Law, simply refers to the set of rules which guide our conduct in the society and is enforceable
by the state through public agencies.
According to the oxford dictionaries law can be defined as; the system of rules which a particular
country or community recognizes as regulating the actions of its members and which it may
enforce by the imposition of penalties
According to John Austin law may be defined as a rule of human conduct imposed upon and
enforced among the members of a given state.

According to Holland law may be defined as a general rule of external human action enforced by
a sovereign political authority.

According to Salmond: Law is a body of rules or principles recognized and applied by the state
in the administration of justice.

NATURE OF LAW
According to the Legal positivism, law is defined by the social rules or practices that identify
certain norms as laws. Legal realism holds that the law should be understood as being determined
by the actual practices of courts, law offices, and the police, rather than as the rules and doctrines
set forth in statutes or learned treatises. It had some affinities with the sociology of law while Legal
interpretivism- is of the view that law is not entirely based on social facts, but includes the morally
best justification for the institutional facts and practices that we intuitively regard as legal.
Characteristics of law
1. It is a set of rules.
2. It regulates the human conduct
3. It is created and maintained by the state.
4. It has certain amount of stability and uniformity.
5. It is backed by coercive authority.
6. Its violation leads to punishment.
7. It is the expression of the will of the people and is generally written down to give it definiteness.
8. It is related to the concept of 'sovereignty' which is the most important element of state.

FUNCTIONS/PURPOSES OF LAW
1. It promotes peaceful coexistence
2. Maintenance of law and order
3. Prevents anarchy
4. It is a standard setting and control mechanism. Law sets standards of behaviour and conduct in
various areas such as manufacturing, construction, trade e.g.
5. It protects rights and enforces duties by providing remedies whenever these rights or duties are
not honored.
6. Facilitating and effectuating private choice. It enables persons to make choices and gives them
legal effect.
7. It resolves social conflicts.
8. It controls and structures public power. Rules of law govern various organs of Government and
confer upon them the powers exercisable by them.
9. It facilitates justice in the society.
10. It promotes good governance, accountability and transparency.

CLASSIFICATION OF LAW
Law may be classified as:
Written law
This is codified law. These are rules that have been reduced to writing i.e. are contained in a formal
document otherwise referred to as a code or an act of parliament e.g. the Constitution of Kenya ad
all Acts of Parliament.
Unwritten law
These are rules of law that are not contained in any formal document. The existence of such rules
must be proved. E.g. African Customary law, Islamic law, Common law, Equity, Case law etc.
Municipal/ national law
This refers to rules of laws that are applicable within a particular country or state. This is state law
that regulates the relations between citizens inter se (amongst themselves) as well as between the
citizens and the state. It originates from parliament, customary and religious practices.
International law
This is a body of rules that generally regulates the relations between countries or states and other
international persons e.g. United Nations. It originates from international treaties, conventions,
general principles and customary practices of states.
Public law
It consists of those fields or branches of law in which the state has a direct interest as the sovereign.
It is concerned with the Constitution and functions of the various organizations of government
including county government’s and their relations with each other and the citizenry. Public law
includes:
1. Criminal Law
2. Constitutional Law
3. Administrative Law
Private law
It consists of those branches of law in which the state has no direct interests as the state/ sovereign.
It is concerned with the legal relationships between persons in ordinary transaction e.g.
1. Law of contract
2. Law of property
3. Law of succession
4. Law of marriage
5. Law of torts
6. law of trust
Substantive law
It consists of the rules themselves as opposed to the procedure on how to apply them. It defines
the rights and duties of the parties and prescribes the remedies applicable. Substantive law defines
offences and prescribes the punishment, for example:
1. The Law of torts
2. The Law of succession
3. The Law of contract
 4. The Law of marriage
5. .The Penal Code
Procedural law
This consists of the steps or guiding principles or rules of practice to be complied with in the
administration of justice or in the application of substantive law. e.g.The Civil Procedure Code
and The Criminal Procedure Code
Criminal law
This is the law of crimes. A crime is an act or omission committed or omitted in violation of public
law e.g. murder, treason, theft, etc. All crimes are created by parliament through statutes.A person
who is alleged to have committed a crime is referred to as a suspect. As a general rule, suspects
are arrested by the state through the police at the instigation of the complainant. After the arrest,
the suspect is charged in an independent and impartial court of law whereupon he becomes the
accused.
Criminal cases are generally prosecuted by the state through the office of the DPP. Under the
Constitution, an accused person is presumed innocent until proven or pleads guilty. The sentence
may take the form of Imprisonment, Fine, Probation, Corporal punishment, Capital punishment,
Community service etc
Civil law
It is concerned with the rights and duties of persons i.e. individuals and corporations. Branches of
civil law include:-
1. Law of contract
2. Law of torts
3. Law of property
4. Law of marriage
5. Law of succession
When a person’s civil or private rights are violated, he is said to have a cause of action. Examples
of causes of action include: Breach of contract, Defamation, Assault, Negligence, Trespass to
goods etc. Causes of action are created by parliament through statutes as well as the common law
and equity. The violation of a person’s civil rights precipitates a civil case or action. The person
whose rights are allegedly violated is known as the plaintiff and the person who violates the rights
of another is known as the defendant. It is the duty of the plaintiff to prove his allegations against
the defendant. This means that the burden of proof lies with the plaintiff. The standard of proof in
civil cases is on a balance of probabilities. If the plaintiff proves his allegations by evidence, he
wins the case and is awarded judgment which may take the form of:-Damages (monetary
compensation), Injunction, Specific performance

DISTINCTION BETWEEN CIVIL AND CRIMINAL LAW-

i. Crime is a public wrong the commission of which may result in the prosecution and punishment
of the wrong doer while a civil wrong is a violation of the private rights of an individual

ii. The parties in criminal law are the prosecution and the accused. The prosecution represents the
state while the accused is the offender. In civil wrongs the parties are the plaintiff and the
defendant. The plaintiff is the innocent/injured party who is suing while the defendant is the wrong
doer who is being sued.

iii. Punishment is criminal law is usually by imprisonment, corporal punishment, death penalty or
fine while punishment in civil wrongs a defendant once found guilty is usually ordered to pay to
the plaintiff damages.

iv. In criminal law the prosecution must prove its case against the accused beyond any reasonable
doubt while in civil wrongs the plaintiff need only to prove his case on a balance of probability

v).in criminal law, the action cannot be compromised by the parties but in civil cases the parties
are free to compromise and can withdraw cases against each other

vi. The burden of prove in criminal cases usually lies on the prosecution while in civil case the
burden of prove usually lies on the plaintiff

LAW AND MORALITY

Morality is the sense of judgment between right and wrong by reference to certain standards
developed by society over time. It defines standards of behavior widely accepted by a society and
is binding on the conscience of the members of that society. An action that is considered to be
opposed to morality will generally be frowned upon by that society. However, morality is not
enforceable by courts of law,it differs from one community to another. This is compared to rules
of law, which are binding, enforceable and have sanctions in all cases.
Wrongs in society are contraventions of law or morality or both. However, the law incorporates a
significant proportion of morality. In such instances, where law and morality overlap, morality is
enforced as a rule of law. Such morality becomes part of the law. E.g. Killing a person is immoral
as well as a crime. So is theft. However, certain wrongs in society contravene morality but not the
law e.g. disrespects failure to provide for parents, failure to rescue a drowning person etc.
The relation of morality to law
1. The existence of unjust laws (such as those enforcing slavery) proves that morality and law are
not identical and do not coincide.
2. The existence of laws that serve to defend basic values such as laws against murder, rape,
malicious defamation of character, fraud, bribery, etc. proves that the two can work together.
3. Laws govern conduct at least partly through fear of punishment. When morality, is internalized,
when it has become habit-like or second nature, governs conduct without compulsion. The virtuous
person does the appropriate thing because it is the fine or noble thing to do, not because not doing
it will result in punishment.
4. As such, when enough people think that something is immoral they will work to have a law that
will forbid it and punish those that do it.

TOPIC 2 SOURCES OF LAW

The source of law literally means where rules of law are found. I.e. the materials from which rules
of law are developed. A Source has been used to describe the origins of the rules and principles
which constitute the law applicable in a country at a given time. It may be used to describe the
legal, formal, historical and material sources of law. The various sources of law of Kenya are:

1. The Constitution
2. Legislation (Act of Parliament) (Statutes)
3. Delegated legislation
4. Statutes of General Application
5. Common law and Equity
6. Africa Customary law
7. Islamic law
8. Case law or judicial precedent (judge–made law)/stare decisis

THE CONSTITUTION
A Constitution is a public document, which regulates the relations between the state and its citizens
as well as the relations between the organs of the state. This is a body of the basic rules and
principles by which a society has resolved to govern itself or regulate its affairs. It contains the
agreed contents at the political system. A Constitution sets out the basic structure of government.
The Constitution of Kenya is a source of law from which all other laws derive their validity from.
Article 2 (4) The Constitution provides among other things that this Constitution is the Constitution
of the Republic of Kenya and shall take the force of law throughout Kenya, if any other law is
inconsistent with this Constitution, this Constitution will prevail and the other law shall to the
extent of its inconsistency be void”.

ISSUES ADDRESSED IN THE CONSTITUTION OF KENYA.

The Constitution of Kenya covers the following matters:
1. The people of Kenya
2. The supremacy of the Constitution.
3. The republic. That Kenya is an independent state with an organized government.
4. Bill of rights. It contains the fundamental rights and freedoms
5. Citizenship, i.e. how one acquires and losses citizenship.
6. Leadership and integrity under chapter six of the Constitution.
7. Representation of the people.
8. Separation of powers i.e. how the three organs of the state operate under different heads.
9. Devolved governments. There is a central and county government.
10. Matters of public finance.
11. Amendment of the Constitution.
A Constitution may be classified in the following ways:

1. Written constitution
A written constitution means a constitution written in the form of a book or a series of documents
combined in the form of a book. It is a consciously framed and enacted constitution. It is
formulated and adopted by a constituent assembly or a council or a legislature

2. unwritten constitution

An unwritten constitution is one which is neither drafted nor enacted by a Constituent Assembly
and nor even written in the form of a book. It is found in several historical charters, laws and
conventions. It is a product of slow and gradual evolution

3. Flexible Constitution:

A Flexible Constitution is one which can be easily amended. Several political scientists advocate
the view that a flexible constitution is one in which the constitutional law can be amended in the
same way as an ordinary law. Constitutional amendments are passed in the same manner by which
an ordinary law is passed.

4. Rigid Constitution:

The Rigid Constitution is one which cannot be easily amended. Its method of amendment is
difficult. For amending it, the legislature has to pass an amendment bill by a specific, usually big,
majority of 2/3rd or 3/4th. For passing or amending an ordinary law, the legislature usually passes
the law by a simple majority of its members or it must go through the referendum. A rigid
constitution is considered to be the most fundamental law of the land.

5. Monarchical Constitution

In monarchical, the monarch is the head of state, although in Britain’s case, the powers of the
monarch are limited, and the Queen reigns in accordance with the constitution. The political power
lies with the Prime Minister. Accordingly, a constitutional monarchy is a limited monarchy.

6. A republican constitution

A republican constitution provides for the election of a President who is the head of state and the
head of the government. A republican constitution places the power in the hands of the President

7. Presidential constitutions
The President will be the head of state and the head of the executive branch of the government but
not the head of the legislature and not accountable to it. The President is not a member of
parliament.

8. Parliamentary constitution

In a Parliamentary constitution, the head of the executive branch of the government is the Prime
Minister, who will also be the head of the executive, and also a member of the legislative

branch of the government and accountable to it.

8. Federal and Unitary Constitutions

SUPREMACY OF THE CONSTITUTION

Supreme means greatest or highest. The supremacy of the Constitution as source of law is
manifested in the tollowing ways:

1) All other laws derive their validity from the Constitution

2) It proclaims its own supremacy. The Constitution provides among other things that, if any other
law is inconsistent with this Constitution, this Constitution will prevail and the other law shall to
the extent of its inconsistency be void”.

3) The Constitution creates the principal and other organs of government e.g. The Legislature,
Executive and Judiciary

4) The Constitution has a special amendment procedure.

5) Fundamental rights and freedoms are guaranteed in the Constitution

6) No person may claim or exercise Slate authority except as authorized under the
Constitution.
7) The validity or legality of the Constitution cannot subject to challenge by or before any court or
state organ.
8) The Constitution is also supreme since it outlines the governing structure of a country and
defines the various organs of the government.
9) It gives the functions of the various arms of the government and clearly indicates the separation
of powers.
10) The Constitution establishes highest office in the land i.e. office of the President and grants
the occupant power as head of state and government.

Legislation / statute law/acts of parliament

Legislation is the process of law making through Parliament directly. Law made by Parliament is
known as a statute or an Act of Parliament.
The law making process begins by Bills being passed by the National Assembly. A bill is draft
law and may be classified as:

Government Bill; this is a Bill mooted by the government which it introduces to the National
Assembly for debate and possible enactment to law. All government bills are drafted by the office
of the Attorney General. Most bills are government bills

Private Member's Bill: Private Member's Bills is introduced by a private member of Parliament
in his or her own capacity as Such a member.The member must move a motion seeking leave of
the House to introduce the Bill. The member is responsible of drafting his own bill.

Public Bills: Public Bills deal with matters of public policy and their provisions affect the general
public. These Bills are introduced by the Minister concerned.
Private Bills: Private Bills are those which are intended to affect or benefit some particular person,
association or corporate body.

The process of passing a Bill into law/stages of legislation

The Bill passes through the following stages to become law
1.Publication of the bill in the Kenya Gazette Before the first reading, the Bill is published in
the Kenya Gazette for information purposes. All bills must be published in the Kenya Gazette to
inform the public and memers of parliament of the intended law. As a general rule, a Bill must be
published at least 14 days before introduction to the National Assembly. However, the National
Assembly Is empowered to reduce the number of days.
2.First reading: Under this stage, the clerk reads out only the title of the bill. No debate or vote
takes place here but the date for the second reading is fixed. If the Bill is approved at this stage,
then it is printed and copies circulated among the members of Parliament to enable them prepare
for a debate of this Bill. This Is the Introductory stage of law making.
3.Second reading: At this stage the member in charge of the Bill explains the main feature of the
Bill. A debate takes place and the members of the house are allowed to participate in the debate.
4.Committee stage: Here the details of the various aspects contained in the bill are analysed and
scrutinized by either the committee of the whole house or a select committee which consists of
some selected members of the house.
5.Report Stage: After scrutiny and analysis at committee stage, the report of the same is submitted
to the house. If any amendments are made at the committee stage, the same are debated again, then
the bill moves to the next reading if approved
6.Third reading: Here there are no much debates. A final vote is given after minimal debate, and
if approved, the bill is said to have been passed into law
7.President's Assent: A bill passed by the National Assembly does not become law until the
President gives his assent. The President may refuse to give his assent if in his opinion the bill
does not serve the best interest of the people. A bill becomes law as soon as it gets the President’s
assent.
President’s refusal to assent to the bill. Within fourteen days after receipt of a Bill, the President
shall assent to the Bill; or refer the Bill back to Parliament for reconsideration by Parliament,
noting any reservations that the President has concerning the Bill. If the President refers a Bill back
for reconsideration, Parliament may, amend the Bill in light of the President’s reservations or pass
the Bill a second time without amendment.
8.Publication of Law in the Kenya Gazette

Under the Constitution, a law passed by the National Assembly must be published in the Kenya
Gazette before coming into operation. An Act of parliament comes into operation either on the
date of publication in the Kenya Gazette or on such other dates as maybe signified by the minister
by a notice in the Kenya Gazette.

Advantages of Statutes Law,

Advantages of Statutes Law

1. Democratic: Parliamentary law making is the most democratic legislative process. This is
because parliament consists of representatives of the people they consult regularly. Statute Law,
therefore, is a manifestation of the will of the people.
2. Resolution of legal problems: Statute Law enables society to resolve legal problems as and
when they arise by enacting new statutes or effecting amendments to existing Law.
3. Dynamic: Statute Law enables society to keep pace with changes in other fields e.g. political,
social or economic. Parliament enacts statutes to create the necessary policies and the regulatory
framework.
4. Durability: Statute Law consists of general principles applicable at different times in different
circumstances. It has capacity to accommodate changes without requiring amendments.
5. Consistency/Uniformity: Statute Law applies indiscriminately i.e. it regulates the conduct of
all in the same manner and any exceptions affect all.
6. Adequate publication: Compared to other sources of Law, statute Law is the most widely
published in that it must be published in the Kenya Gazette as a bill and as a Law it also attracts
media attention.
7. It is a superior source of law in that only the Constitution prevails over it.

Disadvantages of Statute Law

1. Imposition of Law: Statute Law may be imposed on the people by the dominant classes in
society. In such a case, the Law does not reflect the wishes of the citizens nor does it cater for their
interests.
2. Wishes of M.Ps: Statute Law may at times manifest the wishes and aspirations of M.Ps as
opposed to those of the citizenry.
3. Formalities: Parliamentary Law making is tied to the Constitution and the National Assembly
standing orders. The Law making process is slow and therefore unresponsive to urgent needs.
4. Bulk and technical Bills: Since parliament is not made up of experts in all fields, bulky and
technical Bills rarely receive sufficient treatment in the national assembly, their full implications
are not appreciated at the debating stage.
Functions of parliament
1. Controls government spending
2. Critical function
3. Legislative functions
How to make the law making process effective
1. M.Ps should consult constituents on a regular basis.
2. Subdivision of large constituencies.
3. Establishment of offices in constituencies for M.Ps
4. Enhance civic education
5. All Bills ought to be supported by not less than 65% of all MPs so as to become Law.
6. Bills should be widely published e.g. the Kenya Gazette should be made available to larger
segments of the society. Bills must be published in newspapers

STATUTES OF GENERAL APPLICATION

These are statutes enacted by the UK parliament to regulate the inhabitants of UK generally.
These Statutes are recognized as a source of Law of Kenya by Section 3 (1) (c) of the Judicature
Act. However, their application is restricted in that they can only be relied upon in the following
circumstances:
1. in the absence of an Act of parliament of Kenya.
2. If consistent with the provisions of the Constitution.
3. If the Statute was applicable in England on or before the 12/8/1897
4. If the circumstances of Kenya and its inhabitants permit.eg. Infants Relief Act, 1874, Married
Women Property Act 1882. Factories Act, 1889

DELEGATED LEGISLATION
Delegated legislation is also referred to as subsidiary (subordinate legislation). It is Law not made
by parliament but. made by subordinate but competent bodies’ e.g.
1. county government Local Authorities
2. Professional bodies such as ICPA (K)
3. Statutory boards
4. Government ministers
These bodies make the laws in exercise of delegated legislative power conferred upon them by
parliament through an Enabling or Parent Act. Delegated legislation takes various forms e.g.by-
laws applicable within their administrative area, Government ministries, professional bodies and
others make rules, orders, regulations, notices statutory instruments etc.
Characteristics of delegated legislation
1. All delegated legislation is made under the express authority of an Act of Parliament.
2. delegated legislation must be published in the Kenya Gazette before coming into force.
3. Unless otherwise provided, delegated legislation must be laid before parliament for approval
and parliament is empowered to declare the delegated legislation null and void by a resolution to
that effect whereupon it becomes inoperative to that effect
Reasons for delegated legislation
Delegated legislation is described as a “necessary evil” or a Constitutional impropriety”. This is
because it interferes with the doctrine of separation of powers which provides that the Lawmaking
is a function of the legislature. Parliament therefore delegates Law-making powers to other persons
and bodies for the following reasons:
1. Parliament is not always in session
2. Parliament is not composed of experts in all fields
3. There is Inadequate parliamentary time
4. Parliamentary Law-making is slow and unresponsive to urgent needs.
5. it lacks the requisite flexibility
5. There is Increase in social legislation

Advantages of delegated legislation

1. Compensation of lost parliamentary time: Since members of parliament are not always in the
National Assembly making Laws, the Law-making time lost is made good by the delegates to
whom legislative power has been transfered hence no Law making time is lost.
2. Speed: Law-making by government Ministers, Professional bodies and other organs is faster
and therefore responsive to urgent needs.
3. Flexibility: The procedure of Law-making by delegates is not tied to rigid provisions of the
Constitution or other law. The Minister therefore enjoys the requisite flexibility in the Law-making
process. He is free to consult other persons.
4. Technicality of subject matter: Since parliament is not composed of experts in all fields that
demand legislation, it is desirable if not inevitable to delegate Law-making powers to experts in
the respective fields e.g. Government Ministries and local authorities.
Disadvantages of delegated legislation
1. Less Democratic: Compared to statute law, delegated legislation is less democratic in that it is
not always made by representatives of the people affected by the law. These. rules are drafted by
technical staff in a government ministries.
2. Difficult to control: It’s enormous growth has made it impossible for parliament to watch over
it. Neither parliament nor courts of law can effectively control delegated legislation by reason of
their inherent and operational weakneses
3. Inadequate publicity: Compared to statute law, delegated legislation attracts minimal publicity
if any. This law is to a large extent unknown.
4. Sub-delegation and abuse of power: Delegates upon whom law making has been delegated
by parliament often sub-delegate to other persons who make the law. Sub delegation compounds
the problem of control and many lead to abuse of power.
5. Detailed and technical: It is contended that in certain circumstances, delegated legislation made
by experts is too technical and detailed for the ordinary person to comprehend.
COMMON LAW AND EQUITY
Common law is described as a branch of the law of England which was developed by the ancient
common Law Courts from customs, usages and practice of the English people. These courts relied
on customs to decide cases before them thereby giving such customs the force of law. The common
law established the court of Kings Bench, Court of Exchequer and the court of common pleas.
These courts standardized and universalized customs and applied them in dispute resolution. At
first, common law was a complete system of rules both criminal and civil. The development of the
common law is traceable to the Norman Conquest. The Normans are credited for having laid the
foundation for the development of the common law.
Characteristics of common law
1. The writ system
At common law, actions or cases were commenced by a writ. There were separate writs for
separate complaints. Writs were obtained at the Royal office. A Writ stated the nature of the
compliant and commanded the police officer of the country in which the defendant resided to
ensure that the he appeared in court on the mentioned date. Often, police officers demanded bribes
to compel the defendant to appear in court and would not compel an influential defendant. The
writ system did not recognize all possible complains and many would be plaintiffs could not access
the courts. It also lengthened the judicial process.
2. Doctrine of stare decisis
Stare Decisis literally means “decision stands” or “stand by the decision.” This is a system of
administration of justice whereby previous decisions are applied in subsequent similar cases. At
common Law, a judge having once decided a case in a particular manner had to decide all
subsequent similar cases similarly. This made the common Law system rigid. Common Law
consists of decisions handed down by courts of law on the basis of customs and usages and may
be described as the English Customary Law.
Problems/shortcomings of common law
1. Writ System: Cases at common Law were commenced by a writ issued by the Royal office.
There were separate writs for different complaints. However this system did not recognize all
possible complaints and many would be plaintiffs had no access to the courts. The writ system also
encouraged corruption and It lengthened the course of justice
2. Rigidity/inflexibility: The common Law courts applied the doctrine of Stare Decisis. This
practice rendered the legal system rigid and hence unresponsive to changes.
3. Procedural technicalities: The Common Law procedure of administration of justice was highly
technical. Common Law courts paid undue attention to minor points of procedure and many cases
were often lost on procedural matters.
4. Delays: The administration of justice at common Law was characterized by delays. Defendants
often relied on standard defenses to delay the course of justice.
5. Non-recognition of trusts: At common Law beneficiaries had no remedy against errant trustees
and trustees had no enforceable rights against beneficiaries because Common Law did not
recognize the trust relationship.
6. Inadequate remedies: Common Law courts had only one remedy to offer and that is monetary
compensation or damages. They could not compel performance or restrain the same.
7. Inadequate protection of borrowers: At common Law, a borrower who failed to honour his
contractual obligations within the contractual period of repayment would lose not only his security
but the total amount paid.

The doctrines of equity

Equity mean fairness or justice. It is a set of rules formulated and administered by the court of
chancery before 1873 to supplement the rules of common law. This court dealt only with those
cases where common law either provided no remedy or the remedy provided was inadequate.
Equity therefore is a body of principles constituting what is fair and right.
Origins of equity
Citizens dissatisfied with the decision of the judges of common law often made petitions to the
kings in council. The petitions were decided by the king himself but due to much work, the king
later delegated this function to his lord chancellor who was a clergyman to decide the appeals
applying the rules of natural justice and morality. The petitions to the Lord Chancellor were made
on the following grounds:-
1. The common law courts provided no remedy for certain wrongs
2. The remedies provided in certain situations were not satisfactory.
3. The common law courts sometimes acted under pressure or influence of bribes. The remedies
granted by equity courts become known as equitable remedies.
Principles /maxims of Equity
During the early development of equity the lord chancellors acted at their own discretion, but
eventually, some firm rules of equity were established which guided chancellors in deciding
disputes. These rules are known as equitable maxims. The Maxims of Equity include:
1. He who seeks equity must do equity
2. He who comes to equity must come with clean hands
3. Equity is equality (Equality is equity)
4. Equity looks to the intent or substance rather than the form
5. Equity regards as done that which ought to be done
6. Equity imputes an intent to fulfil an obligation
7. Equity acts in personam
8. Equity will not assist a volunteer (Equity favours a purchaser for value without notice)
9. Equity will not suffer a wrong to be without a remedy (Where there is a wrong there is a remedy
for it) Ibi jus ibi remedium
10. Equity does not act in vain
11. Delay defeats equity
However, common Law and the doctrines of equity are recognized as sources of law of Kenya
subject to the following qualifications.
1. In the absence of an Act of parliament.
2. If it is consistent with written law including the Constitution.
3. If it was applicable in England on 12/08/1897.
4. If the circumstances of Kenya and its inhabitants permits.
5. Subject to such qualifications as those circumstances may render necessary.

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 or Africa population. Section 3(2) of the judicature act
provides that African customary law shall guide “The high court, court of appeal and all
subordinate courts in civil cases in which one or more of the parties is subject to it or affected by
it, so far as it is not repugnant to natural justice and morality or inconsistent with any written law.
For a custom to be relied upon as law, it must have the following characteristics:
1. Reasonableness; A good local custom must be reasonable i.e it must be consistent with the
principle of justice. Whether or not a custom is reasonable is a question of facts to be determined
by the courts.
2. Conformity with statute law: A local custom must be consistent with law made in parliament.
This is because parliament is the principle law-making body and has Constitutional power to
disqualify the application of any rule of custom.
3. Observation as of right: A good local custom is that which a society has observed openly and
as of right not by force.
4. Immemorial antiquity: A custom must have been observed since time immemorial. i.e no
living person can attest as to when the custom did not exist.
limitations of african customary law
The application of African customary is however limited as follows:
a) The courts are to be guided by African customary law.
b) The law is applicable only in civil cases
c) One of the parties must be subject to it or affected by it.
d) if it is not to repugnant to natural justice and morality.
e) The customary law will be applied only if it is not inconsistent with any written law.
Kenyan law recognizes African customary law as a source of law and it applies in the following
disputes, issues or claims ;

1. Land held under customary tenure

2. Marriage, divorce, maintenance or dowry

3. Seduction or pregnancy of unmarried woman or girl

4. Enticement of or adultery with a married woman.

5. Matters affecting personal status of women, widows and children including custody, adoption,
legitimacy.

6. Intestate succession in so far as not governed by any written law

ISLAMIC LAW
This is a very limited source of law of Kenya which is based on the holy Koran and the teaching
of the prophet Mohammed. This law is applicable in Kenya under article 170, of the constitution
and the Kadhis court act. This law is applicable when it is necessary to determine question of
Muslims law relating to
1. Personal status,
2. Divorce
3. Marriage and
4. Inheritance / succession
In this cases the parties must profess the Muslim religion and submit to the jurisdiction of the
Kadhis courts.

HINDU CUSTOMS
It is applicable under section 5 of Hindu marriage and divorce act, 1960. Section 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 public policy, and in the case of a rule applicable only to a family, has
not been discontinued by the family.
CASE LAW OR JUDICIAL PRECEDENT
In deciding cases or disputes, judges of lower courts follow the decision of higher court if a case
involving similar facts and points of law comes before them. The principle of stare decisis
(meaning let the decision stand) or judicial precedent is a legal rule that requires a judge hearing a
case to refer to earlier cases decided by other judges before him in order to find out if the material
facts of any of those cases before him and, in the event of such finding, to decide the case before
him in the same way as the earlier case had been decided.
The material facts of a case and the decision made by the judge on the basis of those facts are
known as ratio decidendi of the case i.e . The ratio decidendi means reasons for making the
decision, it constitutes the legal rule or principle of the decided case, it forms part of the precedent
and is binding. On the other hand there are statements made by a judge in the course of making a
decision. These are referred to as obiter dicta which means matters said as a by the way.they are
not binding,and do not form part of the precedent
Types of Precedents;

Original precedents
This is a principle or proposition of law as formulated by the court. It is the law-creating precedent
which is formulated from the evidence and the law.
Declaratory Precedent
This is the application of an existing principle of law in a subsequent similar case without changing
or extending it
Binding precedent
This is an earlier decision which binds the court before which it is relied upon. E.g. a precedent of
the supreme Court binds the court of Appeal the High Court and apl subordinate courts
Persuasive Precedent
This is an earlier decision relied upon in a subsequent case to persuade court to decide the case in
the same manner e.g. a High Court decision used in a Court of Appeal or suprme court, or a
decision handed down by a court in foreign country.
Distinguishing precedent This is a subsequent decision of a court which effectively
distinguishes the earlier precedents. It is a precedent in its own right. However, in certain
circumstances, a court may refrain from a binding precedent. In such circumstances, the earlier
decision is ignored or distinguished.
Overruling precedent
In certain circumstances, a court may refrain from a binding precedent on the grounds that the
earlier decision was based on wrong principle or failed to observe the existing precedents. In such
case the decision on is known as per incurium. In such circumstances, the earlier decision is said
to be overruled and this can only be done by a superior.
When is a judicial precedent not binding?
This is done in the following circumstances:
1. Distinguishing; this is the art of showing that the earlier decision and the subsequent case relate
to different material facts. This enables a judge to ignore the precedent.
2. Change in circumstances: A judge may refrain from an earlier decision if the circumstances
have changed so much so that its application would be ineffectual i.e. the decision no longer
reflects the prevailing circumstances.
3. Per incurium: It literally means ignorance or forgetfulness. An earlier decision may be departed
from if the judge demonstrates that it was arrived at in ignorance or forgetfulness of
the law, i.e the court did not consider all the law as they existed at the time.
4. Over-ruled by statutes: If a precedent has been over-ruled by an Act of Parliament, It ceases
to have any legal effect as statute law prevails over case law.
5. The earlier decision is inconsistent with a fundamental principle of law
6. If the ratio decidendi of the previous decision is too wide or obscure.
7. If the ratio decidendi relied upon is one of the many conflicting decisions of a court of
coordinate jurisdiction.
8. Improper Conviction: a court could refrain from a binding precedent if its application was
likely to perpetuate an incorrect, erroneous or improper conviction in a criminal case.

Advantages of case law (importance of stare decisis)

1. Certainty and predictability; Stare Decisis promotes certainty in law and renders a legal
system predictable.
2. Uniformity and consistency: Case law enhances uniformity in the administration of justice as
like cases are decided alike.
3. Rich in detail: stare decisis is rich in detail in that many decisions which are precedents have
been made by courts of law.
4. Practical: Principles or propositions of law are formulated by superior courts on the basis of
prevailing circumstances hence the law manifests such circumstances.
5. Convenience: Case law is convenient in application in that judges in subsequent cases are not
obliged to formulate the law but to apply the established principles.
6. Flexibility: It is contended that when judges in subsequent cases attempt to distinguish earlier
decisions as to justify departing from them, this in itself renders the legal system flexible.

Disadvantages of case law

1. Rigidity: Strict application of stare decisis renders a legal system inflexible or rigid and this
generally interferes with the development of law.
2. Bulk and complexity: Since stare decisis is based on judicial decisions and many decisions
have been made, it tends to be bulky and there is no index as to which of these decisions are
precedent. Extraction of the ratio decidendi is a complex task.
3. Piece-meal: Law-making by courts of law is neither systematic nor comprehensive in nature as
Principles or propositions of law are made in bits and pieces.
4. Artificiality in law (over-subtlety): when judges in subsequent cases attempt to distinguish
indistinguishable cases, they develop technical distractions or distinctions without a difference.
This makes law artificial and renders the legal system uncertain.
5. Backward looking: Judges or courts are persuaded to decide all cases before them in a manner
similar to past decisions. this practice interferes with the ability of a judge to determine cases
without being influenced by previous decisions.

INTERPRETATION OF STATUTES

Since statutes are drafted by experts who use legal terminologies and sentences which may be
interpreted by different persons, it becomes necessary to interpret statutes. Statutory interpretation
has been justified on the premises that it was necessary to ascertain and give effect to the intention
of parliament. Generally, statutory interpretation facilitates uniformity and consistency in the
administration of justice or application of law. To interpret statutes, courts have evolved rules and
presumptions.

RULES / PRINCIPLES / CANNONS OF INTERPRETATION

1. Literal Rule

This is to the effect that where the words in a statute are clear and exact, they should be given their
literal or dictionary meaning and sentences should be accorded their ordinary grammatical
meaning..Under this rule, no word is added or removed from the statute. In R.-v- City of London
Court Judge.

2. Golden rule

This rule is applied by courts to avoid arriving at an absurdity, repugnancy or unreasonable

decision under the literal rule. Under this rule, the court is free to vary or modify the literal meaning
of the word or sentence so as to get rid of any absurdity. Independence Automatic Sales Co Ltd –
v- Knowles and Foster .

3. Mischief Rule [Rule in Haydon’s Case (1584)]

Under this rule, the court examines the statutes to ascertain the defect it was intended to remedy
so as to interpret the statute in such a manner as to suppress the defect. Lord Coke in Haydon’s
case (1584).The judge shall give such construction as shall advance the remedy and suppress the
mischief.

4. Ejusdem generis Rule

This rule is applied to interpret words of the same genus and species. It is to the effect that where
general words follow particular words in the statute, the general words must be interpreted as being
limited to the class of persons or things designated by the particular words. in Evans v. Cross to
interpret the provisions of the Road Traffic Act (1930).

5. Noscitur osociis

This rule literally means that a word or phrase is known by its companions. It is to the effect that
words of doubtful meanings derive their meaning and precision from the words associated with
them..

6. Expressio unius est exclusio ulterius

This rule literally means that the expression of one thing excludes any other of the same
class.where a statute uses a particular term without general terms, the statutes application is
restricted to the instances mentioned.

7. Rendendo singular singullis

This rule is to the effect that words or phrases variously used in a statute must be accorded the
same meaning throughout the statute.

8. Statutes in parimateria

The interpretation of one statute is used in the interpretation of another related (similar) statute.

PRESUMPTIONS IN THE CONSTRUCTION OF STATUTES

In the construction of statutes or Acts of parliament, courts of law are guided by the following
presumptions, ,,,,,

1. The statute was not intended to change or modify the common law

2. The statute was not intended to interfere with individual vested rights.

3. The statute was not intended to affect the presidency.

4. The statute was not intended to apply retrospectively.

5. The statute was not intended to be inconsistent with international law.

6. The statute was not intended to have extra-territorial effect.

7. An accused person is innocent until proven guilty.

General Principles of International Law

The general principle of international law is some proposition of law so fundamental that it will
be found in virtually every legal system. When treaties and customary international law fail to
offer a needed international rule, a search may be launched in comparative law to discover if
national legal systems use a common legal principle which should fill the gap in international law.
International Law consists of rules and principles governing the relations and dealings of nations
with each other, and also to include relations between states individuals and international
organizations like the UN.

Types of international law

1. Public international law

Public international law concerns itself only with questions of rights between several nations and
other nations. These include standards of international behavior, the laws of the sea, economic law,
diplomatic law, environmental law, human rights law, and humanitarian law. Some principles of public
international law are written, or "codified" in a series of treaties, but others are not written down anywhere.
These are known as "customary" laws, and nations consent to them by doing nothing

2. Private international law

Private international law refers to that part of the law that is administered between private citizens
of different countries or is concerned with the definition, regulation, and enforcement of rights.
Private international law is a body of rules used to resolve legal disputes between private
individuals who cross international boundaries.

Sources of International Law

The main sources of international law are treaty law, international customary law and general
principles of law recognised by civilized nations.

Treaty law

Treaties and Conventions are written agreements that states willingly sign and ratify and as such
are obliged to follow. Such agreements, which are also called statutes or protocols, govern the
mutual relations between states. They are, however, only binding on those states that have signed
and also ratified the particular treaty.

Customary international law

Customary international law is made up of rules that are derived from "a general practice accepted
as law". Customary international law is comprised of all the written or unwritten rules that form
part of the general international concept of justice. Customary law is binding upon all states,
regardless of whether they have ratified a treaty.

General Principles of Law.

This source of international law is based on the theory of “natural law,” which argues that laws are
a reflection of the instinctual belief that some acts are right while other acts are wrong. “The
general principles of law recognized by civilized nations” are certain legal beliefs and practices
that are common to all developed legal systems.

Judicial Decisions and Legal Scholarship.

These are not by themselves international law, however when coupled with evidence of
international custom or general principles of law, they may help to prove the existence of a
particular rule of international law.

Fields of international law

The major fields of international law are: International economic law, International security,
International crime, International environmental law, Diplomatic relations, International
humanitarian law or law of war.

Subjects of International Law

Traditionally, states were the main subject of international law. Increasingly, individuals and non-
state international organizations have also become subject to international regulation.

Treaties

A treaty is an agreement entered into by actors in international law,i.e independent sovereign states
and international organizations. A treaty may also be known as protocol, covenant, convention,
pact, or exchange of letters. Treaties are formal international agreements which are written
promises, like a contract, that are binding on the parties. Once executed, treaties become a part of
international law. In their international operation, treaties are simply 'political,' and not legally
binding." The point is that by any widely accepted definition, treaties are binding internationally.
Article 2 (5) (6) of the Constitution of Kenya provides that treaties or conventions ratified by
Kenya shall form part of the Law of Kenya. The treaties and agreements in Kenya are, Diplomatic
Relations, Maritime, Refugees, Aviation and Trade and Commerce.

TOPIC 3
ADMINISTRATIVE LAW
Meaning
Administrative Law can be defined as the law relating to public administration. It is the law relating
to the performance, management and execution of public affairs and duties. Administrative law is
concerned with the way in which the Government carries out its functions. Administration is the
act or process of administering, which simply means it is the act of meting out, dispensing,
managing, supervising and executing government functions it is the law relating to control of
governmental power. It can also be said to be the body of general principles, which govern the
exercise of powers and duties by public authorities. The primary purpose of administrative law,
therefore, is to keep the powers of government within their legal bounds, so as to protect the citizen
against their abuse.
Administrative law is also concerned with the administration and dispensation of delivery of public
services. However it does not include policy making. Administrative law is concerned with how
the government carries out its tasks. The government tasks include delivery of public services such
as health, security, facilitating trade, arbitration of disputes, and collection of revenue.
Administrative law is the law relating to the executive branch of government. The law deals with
a variety of things e.g.
i. The establishment of public authorities e.g. the city council, establishment of public bodies and
organs.
ii. The nature of the tasks given to various public organs and public agencies.
iii. The legal relationship between the public bodies themselves and also between the public
agencies and the public and between public agencies and the citizens.
Administrative Law is concerned with the means by which the powers and duties of the various
public agencies, public bodies and public institutes can be controlled.
Administrative law functions
1. Ministerial functions; these are those functions carried out or performed by Government
Ministers in their implementation of governmental policies and programs. Examples include
appointment of public officials by Ministers and the grant of ministerial approvals and consents.
2. Administrative functions: these are the functions carried out by public officials and public
bodies in their management of various governmental bodies in their provision of services e.g
educational services and in their administration of various social services as in the case of social
security services.
3. Legislative functions: These include the function of making or creating delegated legislation.
The responsibility of legislative functions is on the respective Ministers‟. The duty of making by-
laws is also the respective ministers.
4. Judicial functions: These primarily involve the functions of determining claims or disputes
between individuals and other bodies. A good example of administrative body that performs
judicial functions is the Industrial Court which functions as a court of law.
5. Quasi Judicial functions: These involve the exercise of powers which are fundamentally
judicial but without the usual trappings of a court of law for example without strict requirement of
rules of evidence or the observance of rules of evidence, without strict requirements of examination
of witnesses and without other legal Technicalities. A good example being the Liquor Licensing
Court, the Land Control Boards and the Motor Vehicle Licensing Authorities.
6.To keep the powers of government i.e powers of various public bodies within their legal bounds,
so as to protect citizens from their abuse. Abuse of power can arise either from malice, bad faith
or even from the complexities of the law.

DOCTRINE OF SEPARATION OF POWERS

Doctrine of separation of powers is a legal framework developed by a French jurist (named
Montesquieu ) whose concern was to contain the over concentration of governmental powers in
the hands of one person or a body. This doctrine is a characteristic of Constitutionalism which is
the theory of limited government. According to Montesquieu the only way to create a system of
checks and balances was to ensure that governmental powers were devolved. He developed the so-
called classical doctrine of separation of powers and he suggested that:
1. There should be different organs of government i.e. executive, legislature and judiciary.
2. These organs must exercise different functions. The legislature makes the law, the judiciary
interprets it and settle disputes while the executive administers and implement policies.
3. No person should be a member of more than one organ.
According to him this arrangement would ensure that no single organ exercises unchecked power,
however, this framework cannot operate in any country in its pure state. In Kenya there is no
complete separation of powers as the president assents to bills passed in parliament, he appoints
the judges and through this,he interferes with the organs of the government

NATURAL JUSTICE
Natural Justice is the administration, maintenance, provision or observance of what is just, right,
proper, correct, merited or deserved by virtue of the inherent nature of a person or based on the
sense of right and wrong.
The principles of natural justice are rules governing procedure and conduct of administrative
bodies. They were developed by the courts in England and imported into Kenya as part of common
law principles. These Principles of natural justice are implied and they are supposed to apply in
every case unless the statute expressly states that they will not apply. Principles of natural justice
are applicable in the absence of statutory provisions authorizing their applicability or their
observance.
THE PRINCIPLES/RULES
1. Nemo Judex in causa sua – which means that no man is a judge in his own case wnd that the
procedures must be free from bias.
2. Audi Alteram Partem – which means that no person should be condemned unheard i.e. a person
should not be denied an opportunity to be heard or to state his own case.
The failure to comply with these rules of natural justice , any decision or other administrative
action taken is null and void and can be invalidated by the courts. Breach of principles of natural
justice has been a good ground of judicial review.

JUDICIAL CONTROL OF THE EXECUTIVE

Legislation is the main instrument for implementing policy. It provides for law and order. It
imposes controls but the main effect is to increase the discretionary powers of the government and
this means that more powers is given to civil servants. There is nothing wrong or harmful in this
so long as there is checks and balances. The government departments and public authorities are
subject to ordinary law in the same way as private individuals. The government proceedings act
Cap 40 has made the state to be held liable for breaches to contract and for the torts of its servants.
The principle methods of judicial control are:

a. Damages

This is the normal remedy for the redress of grievances. The main purpose of damages is to
compensate a person for the harm that he has suffered.

b. Injunction

This is an order of the high court which restrains a person or public authority from committing an
illegal act or continuing to commit an illegal act. Public authorities can only do those things as
authorized by the statute. Anything else is regarded to as ultra vires and therefore void.

c. Mandamus

This is an order of the high court which compels a public authority to perform some duty imposed
upon it by a statute. The order only applies to the performance of a duty.

d. Habeas corpus

This is an order of the high court as well as a weapon with which the courts can enquire into any
unlawful restrictions on the liberty of a person and if there is no justification for the detention the
court will issue this order to release the person so detained.

e. Certiorari

This is an order of the high court which removes a case from the inferior court for review or to
restrain any excess of jurisdiction by a body exercising judicial authority and to quash such
decisions if it fails to observe the rules of natural justice.

f. Prohibition

This is an order of the high court to prevent an inferior court from exceeding own jurisdiction or
acting contrary to the rules of natural justice.
g. Declaratory order

This is an order of the high court which states the legal position of the parties by the court. It may
be asked by a person aggrieved by the decision of the inferior court. This is particularly useful in
respect of complaints against the government.

Judicial Review

THis is the process through which a party aggrieved by an administrative body can find redress in
a court of law. Judicial review forms part of administrative law because it is the most appropriate
way that a party aggrieved by an administrative body can find redress. Judicial review refers to the
examination of the actions or inactions of public bodies by the high court in order to

1. To prevent excessive exercise of powers by administrative bodies and officials;

2. To ensure that an individual is given fair treatment by administrative authorities;

3. To keep administrative excesses in check

Grounds of judicial review

These are the circumstances in which an aggrieved person may petition the high court for judicial
review. Courts of law will intervene in public administration in one or more of the following
circumstances. i.e. courts of law will review actions of administrative bodies in one or more of the
following grounde or circumstances:

1. When the body acts beyond its powers(ultra vires)

The doctrine of ultra vires may be on a substantive ultra vires which is acting in excess of powers
with regard to matters of substance. this would include for example an administrative body acting
beyond what is authorized to do.or it may be procedural ultra vires .these are cases where
administrative bodies fail to follow prescribed procedure.

2. Unreasonableness

This is when a public body has considered or taken into account any matter that it ought not to
take into account or when a public body has disregarded any matter that it ought to take into
account.
3. Jurisdictional error

Jurisdiction means the power ,scope or area in which a body is allowed to act. Where there is an
error it means: that an administrative agency has acted without jurisdiction.

4. Error of law

This is a condition or an act of ignorance, negligence or imprudent deviation or departure from the
law. Ignorant departure would include a situation where an administration official is ignorant of
the law.

5. Error of law on the face of the record

This is an error which may be ascertained by an examination of the record of proceedings without
recourse to any evidence

6. Error of fact

The validity of a decision depends on the proper appreciation and interpretation of facts. An error
of fact occurs where there has been an act or a condition of ignorance, negligence or deviation
from facts.

7. Abuse of power

This is where the power and authority given to public bodies have: been put to a wrong or improper
use so as to injure or to damage; been misused or; been used corruptly.

8. Improper exercise of discretion

An administrative body has the authority to exercise discretion whenever the limits of its statutory
authority leave it to decide between two or more causes of action or inaction. There will have to
be a statutory authorization to do something but the statutory provisions does not completely
specify what one is authorised to do. .

8. Irrelevancy

Irrelevancy occurs in two situations: where a decision making body considers a matter which it
ought not to consider in arriving at a decision; e.g. if on the basis of gender a licence is denied.
Where an administrative body disregards something which it ought to consider in making a
decision.

9. Bias

This is a predetermined tendency to favour ones outcome against another. Whenever an allegation
of bias is made, a reviewing court will investigate whether there is an appearance of partiality. A
reviewing court will evaluate whether there is a tendency of one side to favour one person

10. Unfair hearing

Administrative bodies are bound to give a fair and proper hearing to those who come before them.
when this is not done it will call for judicial.Often the statutes will prescribe the procedure for
hearing indicating how concerned parties are to be heard.

11. Irrationality

Irrationality is derived from the word irrational. This means that if a decision making body or an
administrative body acts irrationally, whatever that body does or whatever decision it makes can
be invalidated upon judicial review.

12. Bad faith (mala fides)

If the court finds that a body made a decision in bad faith, it will be invalidated. It is rather hard to
define bad faith but it covers a wide range of circumstances including malice, corruption, fraud,
hatred and similar things. It also includes cases of vindictiveness

Legislative or parliamentary control

(i) Parliamentary approval

(ii) Ministerial approval

(iii) Publication in the Kenya Gazette

(iv) Circulation of draft rules to interested parties.

(v) Delegation of legislative power to selected persons and bodies

(vi) Prescribes the scope and procedure of law making.

TOPIC 4 THE COURT SYSTEM/ STRUCTURE

Kenya has a court structure which operates at different levels. The court at each level has power
to deal with certain cases which is described as the jurisdiction of the court. The jurisdiction of the
court can either be original or appellate. Original jurisdiction is the power to hear the case at first
instance while appellate jurisdiction is the power of the court to hear the case on appeal. The
jurisdiction of the court can be limited to a prescribed area or subject matter e.g. as to crimes which
can be tried or the amount of money in dispute in a civil case.

The Kenya court system include;

MAGISTRATE/SUBORDINATE COURTS-

The resident magistrate or subordinate courts are established by section 3 of the magistrates court
Act 2015 and article 169 of the constitution.

Composition

The magistrate's court shall be subordinate to the High Court and shall be duly constituted when
presided over by a chief magistrate, a senior principal magistrate, a principal magistrate, a senior
resident magistrate or a resident magistrate. All magistrates sit alone.

Jurisdiction

The RMC shall have original jurisdiction as follows

1. Criminal jurisdiction

A magistrate's court shall have and exercise such jurisdiction and powers in proceedings of a
criminal nature as may be conferred on it by the Criminal Procedure Code; or any other written
law.

2. Civil jurisdiction

A magistrate's court shall also have and exercise such jurisdiction and powers in proceedings of a
civil nature in which the value of the subject matter does not exceed—
Court value of the subject matter not exceeding

CMC 20M

SPMC 15M

PMC 10M

SRMC 7M

RMC 5M

3. Jurisdiction in Environment and Land matters

Subject to the pecuniary limits prescribed, the court can hear and determine claims relating to

I. environmental planning ,protection, boundaries,and other natural resources;

II. Compulsory acquisition of land;
III. Land administration and management;
IV. Public, private and community land
4. Customary law jurisdiction

A magistrate's court shall have jurisdiction in proceedings of a civil nature concerning any of the
following matters;

(a) Land held under customary tenure;

(b) Marriage, divorce, maintenance or dowry;

(c) Seduction or pregnancy of an unmarried woman or girl;

(d) Enticement of, or adultery with a married person;

(e) Matters affecting status women widows and children including guardianship, custody, adoption
and legitimacy; and

(f) Intestate succession and administration of intestate estates

KADHIS COURT

It is established under article 170 provides for the establishment of the Kadhis courts. It is also
established under the Kadhis court act cap 11
Composition

The Kadhis court is composed of the chief Kadhis and such numbers of Kadhis as shall be
prescribed by the president by order being in any case not less than three.

Jurisdiction

The Kadhis court shall have and exercise the jurisdiction for the determination of question of
Muslim law relating to:

1. personal status

1. Marriage

2. Divorce

3. Inheritance

In these disputes all parties must profess Muslim religion. Their jurisdiction is limited as defined
under section 5 of the Kadhis courts act. Appeals in these matters lie to the high court and the high
court judges’ sits with the chief Kadhis or two Kadhis as assessors only.

MARTIAL COURT

it is establised under Article 169 of the constitution and under section 84 of the armed forces act.
They are military courts set up from time to time to try persons accused of differences under
military law.

Composition

The court martial is convened by the chief of the defence forces or commander in chief. The court
is presided over by a senior commissioned officer and at least two members who are also
commissioned officers. When an officer is to be tried and the maximum penalty is capital
punishment the court comprises of a presiding officer and not less than four other members. A
judge advocate is appointed with the consent of the attorney general to guide and advice the court
on matters of law but the final decision lies with the members of the court.

Jurisdiction
The jurisdiction of the court is wholly disciplinary and its purpose is to ensure discipline in the
armed forces. The court has power to try any person subject to it for any offence under the act.
The offences prescribed by the act include:

- Mutiny

- Insubordination

- Cowardice

- Aiding the enemy or

- Neglect of duty

There is no appeal from this court except on a constitutional question

HIGH COURT

The high court is established by article 165 of the constitution. It has unlimited original jurisdiction
i.e. it can try any case of any value or any crime arising from anywhere in Kenya.

Composition

The high court shall be composed of the principal judge who shall be elected by the judges of the
high court from among themselves and shall consist of the number of judges as may be prescribed
by an act of parliament.

Jurisdiction

i. Unlimited original jurisdiction

The high court has unlimited original jurisdiction in civil and criminal cases but in practice it will
hear those cases which cannot be tried by the subordinate courts e.g. murder, treason, arson,
robbery with violence and in civil cases where the value of the subject matter exceed 20 million
shillings.

ii. Appellate jurisdiction

Appeals from all subordinate courts together with the Kadhis and martial courts go to the high
court. The appeals against conviction are only on matters of law and matters of fact. An appeal to
a civil case tried in the magistrate courts has an absolute right of appeal except from an order which
was passed with the consent of all parties.

iii. Interpretation of the constitution

The high court has jurisdiction to hear any question respecting the interpretation of the constitution
including the determination of the question whether any law is inconsistent with this constitution
and any matter relating to constitutional relationship between the levels of government are in
conflict. The court will give its decision on the question and the court in which the question arose
will dispose off the case in accordance with the decision.

iv. Admiralty jurisdiction

Section 4 of the judicature act provides that the high court shall be a court of admiralty and shall
exercise admiralty jurisdiction in all mattes arising on the high seas or territorial waters in Kenya.
The law to be applied by the high court will be the laws of England but it shall be exercised in
conformity with the international laws.

v. Supervisory jurisdiction

The constitution provides that the high court shall have jurisdiction to supervise over the
subordinate courts, any person, body or authority exercising a judicial function. The court may do
so through making orders, issue writs and give such directions as it may consider appropriate for
the purpose of ensuring that justice is duly administered by those courts. The court will issue the
writ of:

a) Habeas corpus

This is in the nature of a command calling upon the person who has been detained by another to
produce him before the court in order to let the court know on what grounds he has been detained
and to set him free if there is no legal justification for the detention. It also guarantees the personal
liberty of the individual and where he is arrested and kept in confinement without legal justification
he or any other person on his behalf may request the high court to obtain his release by the issue
of this writ.

b) Certiorari
This is an order issued by the high court to a person, body, authority or any subordinate court to
have the records of the proceedings presented to the high court for review. The court will also issue
the writ for the purpose of securing an impartial trial, to review the excess jurisdiction, to challenge
an ultra vires act, to correct errors of law on the face of the record and to quash a judicial decision
made against the rules of natural justice.

c) Mandamus

This is an order or command issued to any person or body commanding him or them to carry out
a public duty imposed by law. The order is available to compel an administrative tribunal to hear
an appeal or to perform a duty.

d) Prohibition

This order is issued by the high court to prevent an inferior court or tribunal from hearing or
continuing to hear a case in either excess of its jurisdiction or where the rules of natural justice are
violated.

vi). Enforcement of fundamental rights and freedoms

Under the Constitution, the High Court has original jurisdiction to enforce fundamental rights and
freedoms of the individual and also to provide remedies whenever a person’s right or freedom has
been or is likely to be violated.

vii) Parliamentary election petitions

The High Court has original jurisdiction to hear and determine parliamentary election petitions.
Under the Constitution it has jurisdiction to hear and determine a petition challenging the election
of a person as a member of the National or county Assembly.

COURT OF APPEAL

It is established under article 164 of the constitution as a superior court of record and which shall
have such jurisdiction and powers in relation to appeals from the high court as may be conferred
on it by law.

Composition
The court of appeal is composed of the president of the court of appeal who shall be elected by the
judges of the court of appeal from among themselves and such number of judges not less than 12
as may be prescribed by an act of parliament.

Jurisdiction

The court of appeal has jurisdiction to hear appeals from the high court in cases in which an appeal
lies to it under any law. The criminal and civil procedure codes provides that If the high court has
heard a civil or criminal case on appeal from a lower court, a further appeal is a brought by way
of petition for the reversion, variation or alteration of the order or judgment appealed against. The
court may uphold the decision, substitute the decision, review or order a new trial but it cannot
commence a new trial since it has only a limited original jurisdiction in contempt matters.

SUPREME COURT

Supreme Court is established under article 168 of the constitution

Composition

It shall consist of the chief justice who shall be the president of the court, the deputy chief justice
who shall be the vice president of the court and five other judges. The Supreme Court shall be
properly constituted for the purpose of its proceedings if it is composed of five judges.

Jurisdiction

1.Original jurisdiction

The court shall have exclusive original jurisdiction to hear and determine disputes relating to the
elections to the office of the president.

2.Appellate jurisdiction

The court shall have jurisdiction to hear and determine appeals from the court of appeal as of right
in any case involving interpretation or application of the constitution and in any other case in which
the supreme court or court of appeal certifies that the matter is of general public importance.

3.Advisory powers
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 governance.

EMPLOYMENT AND LABOUR RELATIONS COURT

Establishment of the Court

The Employment and Labour Relations court is established by Article 162 (2) (a) of the
Constitution for the purpose of settling employment and Industrial relations. The Employment and
Labour Relations Court is a superior court of record with the status of the High Court that exercises
jurisdiction throughout Kenya.

Composition

The court shall consist of The Principal Judge; and such number of Judges as the President may,
acting on the recommendations of the Judicial Service Commission determine,

Jurisdiction

The court shall have exclusive original and appellate jurisdiction to hear and determine all disputes
relating to employment and Labor relations including:-

I. Disputes between an employer and an employee

II. Disputes between an employer and a trade union.
III. Disputes between an employer’s organisation and a trade union’s organization,
IV. Disputes between trade unions,
V. Disputes between employer organisations,
VI. Disputes between an employer’s organisation and trade union,
VII. Disputes between a trade union and a member

In exercise of its jurisdiction, 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 of damages
VI. An order for reinstatement of any employee within three years of dismissal

TRIBUNALS

Tribunals are bodies established by Acts of Parliament to exercise judicial or quasi-judicial

functions. They supplement ordinary courts in the administration of justice but do not have penal
jurisdiction..

Administration Tribunals in Kenya are set up by law to adjudicate disputes that arise out of the
statutes creating them. They deal with the administration and enforcement of the Act concerned.
They are

RENT TRIBUNAL

It is established by the Rent Restriction Act

Composition: ,,,

It consists of the chairman deputy chairman and other persons appointed by the Minister in charge
of Housing.

POWERS ,jurisdictions AND FUNCTIONS OF THE RENT TRIBUNAL

It exercises original jurisdiction in civil cases between landlords and tenants of residential premises
whose monthly rent does not exceed Kshs 2,500.00. The powers and functions are

1. To assess the standard rent of any premises on its own motion or on application.

2. To determine the date from which such rent is payable.

3. To apportion rent between tenants where tenancy is shared.

4. To facilitate vacant possession of premises to enable the landlord do repairs or erect additional
buildings.

5. To facilitate recovery of rent arrears by the land lord.

6. To permit the levy of distress for rent.

BUSINESS PREMISES RENT TRIBUNAL ,,,,,

It is established by the Land Lord and Tenant (shops, hotels and catering establishments) Act 301.

Composition:

It consists of the chairman and other persons appointed by the Minister for housing/trade.

Jurisdiction: ,,,,

It exercises jurisdiction in civil cases between landlords and tenants of commercial premises where
the tenancy is ‘controlled. A controlled tenancy is a tenancy of a shop, hotel or catering
establishment which has not been reduced into writing or has been reduced into writing but does
not exceed lease period of 5 years and contains provision for termination.

Powers and functions of the business premises tribunal

1. To determine whether the tenancy is controlled or not.

2. To determine the rent payable in respect of a controlled tenancy

3. To apportion rent between tenants where a controlled tenancy is shared.

4. To permit the levy of distress for rent.

5. To compel the landlord to compensate the tenant for any loss occasioned by termination of the
tenancy.

6. Facilitates vacant possession of the premises.

ADVANTAGES

Tribunals enjoy the following advantages over ordinary courts:

1. Cheap: It is relatively cheaper to see a dispute through a tribunal than an ordinary court hence
there is a saving on cost.

2. Informality: Tribunals are less technical i.e they are free from technicalities of procedure which
characterize ordinary courts.

3. Flexibility: Tribunals are not bound by previous decisions. This gives them the required
flexibility to explore in decision-making.
4. Expert knowledge and specialization: Tribunals are specialized in that they deal with similar
disputes all through. Expertise is built on experience.

5. Convenience: Tribunals in certain circumstances sit at the convenience of the parties. They
generally use language familiar to the parties.

6. Relief overburdening of courts: Tribunals compliment ordinary courts in the administration of

justice by dealing with certain disputes.

DISADVANTAGES nov 2012 q2a atc

1. Legal representation May be limited or non- existent

2. Tribunals generally exercise unregulated discretion

3. Decisions of certain tribunals may not be appealed against.

4. They can be biased

Inquiry Tribunals in Kenya

They are full-scale inquiries dealing with urgent matters of public importance. For example, an
inquiry tribunal may be set up to investigate corruption, mishandling of issues and improper
conduct of public officers.

Domestic Tribunals in Kenya

They are set up by private organisations for administration purpose, settling disputes and
exercising disciplinary control of members, professional group. Jurisdiction is therefore,
contractual and limited by rules or regulations, which comprise the terms of the contract.

TOPIC 5
LAW OF PERSONS