26.1.

1T INTRODUCTION TO LAW

NATURE AND SOURCES OF LAW

MEANING OF LAW

Though there is no generally accepted definition of law, the following are some of the
definitions:
i. Law is a general rule of external human action enforced by a sovereign political
authority.
ii. The law is the body of principles recognized and applied by the state in the
administration of justice (Salmond)

Thus, the law of State consists of those rules of conduct and standards prescribed by the
people in authority for governing and regulating peaceful relations between members of a
particular community or State. These rules may originate form Acts of Parliament or
customers, and are enforced by the duly constituted courts of law - punishment in
criminal cases or pay damages or deliver property in civil actions.

CLASSIFICATION OF LAW

The law is divided into two main branches:

a) Criminal law;
b) Civil Law.
(a) Criminal Law is concerned with crime like murder, rape, grievous bodily harm, robbery,
theft, etc – all included in the Penal Code of Kenya. A crime may be described as an act,
default or conduct prejudicial to the community, the commission of which, by law, renders
the person responsible liable to be prosecuted and punished accordingly (in the name of the
State v ---- (name of accused)).

The punishment for crime ranges from fine to hanging. Prosecution must establish guilt of
the accused beyond any reasonable doubt.

(b) Civil law is primarily concerned with the violation of private rights belonging to an
individual in his capacity as an individual e.g. refusing to pay a loan, or defaming another.

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 Proceedings are instituted in the courts by the plaintiff himself and the burden of proving
his claim rests on him.
The remedies (punishment) available in civil actions are:
i. Damages: this is a common law remedy designed to compensate the innocent
party by award of damages.
ii. Specific Performance: is the court’s order directing the defaulting party to
carry out his specific obligations, where damages are not an adequate remedy.
iii. Injunction: is a court order telling a person either to do a thing or refrain from
doing a particular act.

Other branches of law

(c) Procedural Law: This lays down the rules in detail for the guidance of the courts
regulating the manner in which the proceedings are required to be conducted in civil and
criminal cases.
(d) Substantive Law: This includes actual rules of law as opposed to adjective or procedural
law. It defines civil and criminal wrongs, and provides remedies for each type of offence or
civil wrong.

THE SOURCES OF KENYA LAW

According to Salmond, a formal source of law is that from which a rule of law derives its force
and validity; that is the will of the State as manifested in statutes or decisions of the courts (i.e.
the legal source is legislation and precedent), while the historical source is the actual origin of
the rule adopted by the court in arriving at its decision

Section 3 of the Judicature Act sets forth the sources of Kenyan law in the following order:

1) The Kenya Constitution – refers to a comprehensive framework of rule through which

Kenya as a State operates.
2) All other written laws including the Acts of Kenya Parliament and of the United
Kingdom cited in Part I of the Schedule of this Act, modified in accordance with Part II
of that Schedule.

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 3) The substance of the common law, the doctrine of equity and statutes of general
application in force in England on 12th August, 1897. They apply so far only as the
circumstances of Kenya and its inhabitants permit and subject to such qualifications as
those circumstances may render necessary (Section 3(c)).
4) African customary law. Section 3(2) provides that the High Court and all subordinate
courts will apply customary law in civil cases in which one or more of the parties subject
to it or affected by it is African.
5) Islamic Law – Derived from the Quran and is applied by Kadhi`s courts where both
parties profess the Muslim faith and the dispute is related to the matters of: personal
status, marriage, divorce and inheritance.
6) Delegated Legislation – laws (made by bodies other than Parliament) to which
Parliament has delegated the authority to make the laws.
7) Case Law (or Judicial Precedent) – Ruling today used to make rulings for tomorrow.
8) International Treaties by the family of nations, of which Kenya is a signatory.

PARLIAMENTARY LEGISLATION PROCESS

The Parliamentary legislative process goes through the following steps:

1. Drafting of a bill – done by legally qualified specialists attached to office of attorney

general.
2. First reading of the bill in Parliament after which it is printed and circulated to MPs to
prepare for debate.
3. Second reading – concerned MP explains the bill and other MPs are allowed to debate
after which a vote is taken; if the bill is sup[ported by the majority of members present, it
passes to the next stage
4. Committee stage – the committee considers the bill thoroughly clause by clause to
propose amendments, if any
5. Reporting stage – the Chairman of the Committee stage reports back to Parliament the
proposed amendments then the bill proceeds to third reading
6. Third reading – minor drafting of the bill is done, no debating is done.

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 7. President’s assent – a bill properly passed by Parliament does not become law until it is
assented (signed) by the President which he may decline to sign with reasons. Once the
assenting is done the bill becomes law and is entered in the Statute book (book containing
written laws).

Notes

1. “Common Law” originally meant the law that was not confined to one particular area,
but was administered in the whole of England. It is a term now used to signify the law
(other than the legislation) which originated in the ancient customs, and was developed
by judges on the principle of stare decisis (to stand by the decisions already made).
2. The Doctrine of Equity
Back in the days, citizens dissatisfied with the decisions of the judges of common law
courts often made petitions to a higher court, which then applied the rules of natural
justice and morality. The petitions to the Lord Chancellor were made on the following
grounds:
(a) The common law courts provided no remedy for certain wrongs e.g. the trusts were
not recognized.
(b) The remedies provided in certain situations were not satisfactory e.g. in case of
breach of contract, the only remedy available was damages. Specific performance,
part-performance or injunctions were not recognized.
(c) The common law courts sometimes acted partially either under the pressure or
influence or bribe of the other party.
3. Case Law (or Judicial Precedent)
In deciding disputes, judges of inferior courts follow the decisions of the higher courts if
cases involving similar facts and points of law come before them. However, it is not the
entire judgment which is a binding precedent; it is only that part which constitutes the
ratio decidendi (reasons for the decision).
4. Hierarchy of Judicial Authority
The general rule is that every higher court binds lower courts. The Supreme Court binds
the Court of Appeal which, in turn, binds all the lower courts e.g. the High Court, the
Magistrates courts, the Kadhi’s courts etc.

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 THE STRUCTURE AND JURISDICTION OF COURTS IN KENYA

The diagram below illustrates the structure and hierarchy of the courts.

SUPREME COURT

COURT OF APEAL

HIGH COURT

KADHI`S
RESIDENT MAGISTATES CURT COURT
CHIEF RESIDENT SENIOR RESIDENT

MAGISTRATE MAGISTRATE MAGISTRATE

DISTRICT DISTRICT MAGISTRATE’S

MAGISTRATE’S COURT COURT SECOND CLASS
FIRST CLASS

DISTRICT MAGISTRATES COURT THIRD

CLASS

Section 162 of the Kenya Constitution defines Superior Courts as the Supreme Court, the Court of
Appeal, the High Court and the courts established by parliament 162(2) with the status of the High Court
to hear and determine disputes relating to:

(a) employment and labour relations; and

(b) the environment and the use of occupation of, and title to, land. The subordinate courts (Sect.169)
(1) are: (i) are the Magistrates Courts, the Kadhi’s, courts, the Court Martial, and any other court
or local tribunal established by an Act of Parliament, other than the ones contemplated in 162(2).
1. The Supreme Court
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 Consists of the Chief Justice (the President), the Deputy Chief Justice (the vice-president)
and five other judges. cl.163 (1).

1. The Supreme Courts has:-

(a) exclusive original jurisdiction to hear and determine disputes relating to the elections
to the office of President
(b) appellate jurisdiction to hear and determine appeals from:
i. the Court of Appeal; and
Interpretation or application of the constitution;
Where the Supreme Court or Court of Appeal certifies that a matter of general
public importance is involved
ii. any other court or tribunal as prescribed by national legislation

2. The Supreme Court may give an advisory opinion at the request of the national government, any
State organ, or any county government with respect to any matter concerning county
government.

2. Court of Appeal

Consists of not fewer than 12 judges. The president of the Court of Appeal is elected by the judges of the
Court of Appeal from among themselves.

It has only appellate jurisdiction and it is not the trial court of first instance. It has jurisdiction to hear
appeals from -

(a) the High Court; and

(b) any other court or tribunal as prescribed by an Act of Parliament. While hearing an appeal, may
uphold the decision of the lower court, reverse the decision, substitute another judgment, or order
a new trial.

3 High Court
Headed by a Principal Judge, who shall be elected by the judges of the High Court from among
themselves.
The High Court shall have:
a) unlimited original jurisdiction in criminal and civil matters

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 b) jurisdiction to determine the question whether a right or fundamental freedom in the Bill of
Rights has been denied, violated, infringed or threatened.
c) jurisdiction to hear an appeal from a decision of a tribunal appointed to consider the
removal of a person from office.
d) jurisdiction to hear any question respecting the interpretation of the constitution e.g.
whether any law or anything said (or done) by authority of the constitution is inconsistent
with or in contravention of the Constitution
e) supervisory jurisdiction over the subordinate courts and over any person, body or a
authority exercising a judicial function, but not over a Superior Court
4 Resident Magistrate’s Court
Is established by section (3) of the Magistrate’s Courts Act. It may be presided by the Chief
magistrate, Principal Magistrate, Senior resident magistrate or resident magistrate and has
unlimited jurisdiction over cases arising anywhere in Kenya – restricted by the amount of money
involved in the dispute.

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 LABOUR RELATIONS

The relationships btn an employee and His employee is like that of a buyer and a seller the seller
in this case is an employee who tries to get the best prize (the highest wages and benefits) for his
products (for his labour). The buyer (employer) tries to pay as little as possible for the labour
employed in this organization.
However, unlike purchase and sale of commodities, labour relations has a human aspect which is
very important. If this aspect is ignored and negotiations between employee and employer are
conducted purely on the basis of a trade deal the consequences are very serious .
This incorrect to assume that good labour relations can exist only if the employer agrees to give
whatever the employees demands.

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