XET 107: LEGAL

SYSTEMS & METHODS

LESSON 5: Legal Methods

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 Overview
Legal Methods is a study of how to apply and make use of
legal resources through

(a) Research – how/where to find the law

(b) Legal Writing – How to cite (refer) to the law, for our purpose , Statutes and Case Law

(c) Interpretation – how to analyze/understand the content of the law (for our purpose ,
Statutes and Case Law)
The above is important since when speaking from a legal
point of view, one is required to support their statement
with “authority” i.e. the basis in law or the provision of law
that supports the statement they are asserting.
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 How to Find the Law
 When faced with a legal problem, lawyers/courts go about finding the
applicable law to apply to the situation

 It is important to remember that the applicable law will depend on whether

the legal problem requires a procedural or substantive law problem i.e. is it a
problem about the process to follow/steps to take or the applicable rights and
obligations, respectively.

 It is also important to remember the hierarchy of laws as provided for under

Section 3 of the Judicature Act. Priority is to be given to the applicable law
depending on the hierarchy of laws. See next slide for reminder

 When specifically dealing with case law one should also remember that the
extent to which the case law they are citing is depends on the hierarchy of the
court that made that decision in light of the principle of stare
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 Hierarchy of the Laws of Kenya
(Section 3 of Judicature Act Cap 8)
CONSTITUTION
(Article 2)

Acts of Parliament Binding International Law

County
Subsidiary Legislation
Legislations

English Statutes of General Common Law principles

Judicial Precedent
Application

Islamic Law African Customary Law

(Matters before Kadhis) (Subject to Repugnance Test)

Legal Writings
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(Text Books, Articles) by Experts
 How to Find the Law
 In Kenya written laws (statutes and the subsidiary legislation thereunder) are first
published by the Government Printer then records of them kept and republished by
the National Council for Law Reporting a semi-autonomous state corporation.

 Traditionally, Statutes are found in various hard copy volumes of Laws of Kenya. Case
Law is also traditionally found in hard copies Law Report Volumes. Examples of Law
Reports commonly used in Kenya are Kenya Law Reports (KLR), East Africa Law
Reports (EALR) and All England Law Reports (All ER). See images in next slide.

 These hard copies were and have remained problematic, for statutes whenever there
were amendments and whenever new subsidiary legislation was made to statutes it
is difficult to reflect those changes. For Case Law, reference has been felt to be tedious
and inefficient .

 These difficulties have led to the advent of online laws database such as
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www.kenyalaw.org
 Images of Examples of
Kenya Laws Volume, KLR, EALR & All ER

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 How to Find the Law
 The National Council of Law Reporting has on its website official
records of:-
(a) The Constitution

(b) Statutes and subsidiary legislation made under such statutes

(c) Case Law reported from Superior Courts (Courts of Record)

(d) Written international law instruments to which Kenya is a part

y

 Lawyers and courts sometimes also refer to and rely on writings by

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experts in books and articles. These are not binding and only acts
 How to Cite (refer) to the Law
 The Constitution of Kenya is to be referred to as the
Constitution of Kenya, 2010. This is important to distinguish it
from pre-2010 constitution which was repealed (replaced in its
entirety) by the current Constitution. Parts of the Constitution
are referred to as follows:
Article, (Sub-article), (Paragraph)
 For example, one case say, “the delegation of the sovereign power of
the people to parliament is provided for under Article 1 sub-article 3,
paragraph (a) of the Constitution of Kenya, 2010” or in numerical
“Article 1(3)(a)”See next slide for a screenshot of the above.

 Also look at the Constitution and find out “what 8 is provided at

Article 43(1)(e) of the Constitution of Kenya, 2010”
 Example from
Article 1 of Constitution

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 Reference/Citation of Laws
Acts of Parliament (Statutes) are to referred to as follows

short title,| Chapters/“Cap”| Laws of Kenya

e.g Evidence Act, Cap 80, Laws of Kenya

or
short title,| Serial Number| of Year
e.g County Governments Act, No 17 of 2012

After extensive referring or where there is familiarity with the

statutes it is acceptable to simply say “Cap 80” or “Act No 17
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of 2012” 0
 Citation/Referencing of Laws
 The provisions of Statutes are usually described as follows:

Section |Sub-section | Paragraph

 For example, once can say “Section 4 Subsection 1 Paragraph (a) of the Access to
Information Act, No 31 of 2016 provides for the right of access to information held by the
state..”

 Where after the alphabetical paragraph there are roman paragraphs, one simply
states the roman number after the alphabetical paragraph for example “under
Section 5 subsection 1 paragraph (a)(i) of the Access to Information Act, No 31 of 2016 a
public entity is under a duty to provide information about itself including particulars of its
organization, functions and duties”

 One can also simply write the above provision as follows “Under Section 5(1)(a)(i) of
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the Access to Information Act, No 31 of 2016 a public entity….” 1
 How to Cite (refer) to the Law
 The University of Nairobi follows the Oxford Standard for Citation Of Legal
Authorities (OSCOLA) form of citation.

 Cases contained in the Hard Copies of Law Reports such as Kenya Law Reports, East
African Law Report are cited as follows:
case name | [year] OR (year) | volume | report abbreviation | first page |
e.g Onyango vs Otieno [1983] 2 KLR 23 or Onyango vs Otieno (1983) 2 KLR 23

 The above means that the case was between Onyango and Otieno, it is contained in
Volume 2 of the Kenya Law Reports of 1982 starting from page 23.

 In reporting the first name starts with the name of the person who lodged the case
or the appeal if it is an appeal and the name(s) appearing after the “-vs-” rfers to
the person(s) who has been sued or against whom the appeal has been filed e.g. in
above, Onyango (Plaintiff) must have filed the case against Otieno (Defendant).

 Try the ones below:

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Taylor vs Kennedy [1990] 3 All ER 233 2
Kamakize vs Bwege [1967] EALR 21
 How to Interpret the Law
 Key parts of Statute –
• Long Title and Short Title.
• Chapter or Act Number
• Substantive parts and Subsidiary Parts
• Schedule

 Key parts of a court decision –

• Background/Introduction,
• Facts, Description of Pleadings,
• Issues,
• Analysis,
• Findings on the Issues,
• Holding.
• Obiter Dicta vs Ratio Decidendi
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