1.
Introduction to Law
‘Laws are wise restraints that make men free.’ Anonymous.
a) What is law?
Different jurists have attempted to variously define the term ‘law’, but there is
no hard and fast definition of law. According to Salmond, law is ‘the body of
principles recognised and applied by the state in the administration of justice.’
John Austin, an English jurist of the 19th Century, described law as ‘definite rules of
human conduct with appropriate sanctions for their enforcement. Such law must also
be promulgated by an established authority.’
Law is a fundamental part of the social structure of a society – even a lawless
society is said to be governed by the ‘law of the jungle’! Law governs the food we eat,
the property we own, what economic activities we may engage in, our rights and
duties as citizens.
Characteristics of law
The two basic characteristics of law are: rules; i.e., some recognised set standard of
behaviour and sanctions for failing to obey those rules.
For our purposes, therefore, we shall say that law is ‘a set of rules that guide human
conduct and affairs, and formal sanctions when those rules are violated.’
Law distinguished from morality
As seen above, the law means those formal rules put in place by the institutions of the
state to govern our conduct. However, there are important social ‘rules’, or
conventions, that govern our day-to-day lives. These are rules of social conduct, or
morality. The law is not concerned with morality: that is, unless the moral rules have
been transposed into law. So for instance, it is immoral to steal. But the law does not
punish theft because it is immoral, it punishes theft because the law, specifically the
Penal Code, makes theft a criminal offence.
Even where one steals for moral reasons, like say, a jobless single mother of six steals
to feed her starving children, she is still guilty of theft. On the other hand, a wealthy
man who refuses to give her food, even if he has more than enough of it, is not guilty,
at least in the eyes of the law, of being selfish. This is because there is no law which
makes being selfish an offence, although many of us would consider it immoral. In
the same vein, being disrespectful to our elders may be immoral, but it is not an
offence in the law.
Nature and functions of law
1. Law may be a standard of justice – that is, it sets out the rights and duties of
citizens in relation to each other and in relation to the state.
2. Law may be a power relation – this simply means that the law is a tool for the
ordering of society by those in power; i.e., the government which makes laws
and enforces them.
3. Law may be a social process – in other words, law is largely derived from and
is a function of the social context in a particular community. Law, however,
must be distinguished from morality and other social norms: not every
immoral or anti – social act is a crime. It may be morally wrong to disrespect
elders or to commit adultery, but they are not crimes in the strict legal sense.
From the above, we can deduce three functions of law:
a) Controlling public power; this is done through laws which set the limits of
governmental power and functions of government; such as the Constitution,
and the High Court’s jurisdiction of judicial review.
b) Promoting individual choice; this is largely found in market societies.
Examples of such laws are contract laws.
c) Resolving social conflict. This largely is criminal law, as well as some forms
of civil law e.g., the negligence concept in the law of tort and family law.
Classification of law
a) Public – vs – private law;
Public law is that law which, as the name implies, governs public affairs. Laws
which establish state corporations, laws which govern public finances, etc, are public
law. Private laws are those which govern individuals’ private affairs, largely these are
marriage laws, and commercial laws such as the law of contract.
b) Criminal – vs – civil law;
Law may also be classified as civil or criminal. Criminal law is a branch of
law that deals with offences against the state and are punished by the state using
devices such as fines and jail terms; while civil law is largely concerned with
individuals’ relations, such as family law, torts and contract law, and whose remedies
are not punitive, but compensatory in nature.
c) Substantive – vs – procedural law;
Substantive law is that law which goes to the root of an issue, whereas
procedural law is the law which governs the process that will lead to a finding on a
substantive question of law. The root of an issue is the overall legal question. In the
case of a contract dispute, the substantive question would be whether there is a breach
of contract or not. By way of example from Kenyan statutes, the Penal Code, Cap 63
is the substantive criminal law of Kenya, whereas the Criminal Procedure Code, Cap
75, provides the procedural law criminal trials. In the case of murder, for instance,
Section 203 creates the offence of murder while Section 137 of the Criminal
Procedure Code requires that the murder charge be framed in a specific format.
d) International – vs – municipal law.
Municipal law is that law which obtains within the territory of a state, while
international law is law derived from rules contained in treaties and customs as
established by sovereign states between and amongst themselves. UN Conventions,
for instance, form part of international law. Municipal law can also be differentiated
from international law in that municipal law is largely compulsory, international law
is voluntary in the sense that states – which are the subject of international law,
accede to or ratify treaties as they deem fit, and cannot be compelled to enter treaties.
Sources of law in Kenya
These are spelt out in Art 2 of the Constitution of Kenya 2010 and Section 3 of the
Judicature Act, 1967, Chapter 8 of the Laws of Kenya, and are:
a) The Constitution – Art 2 declares it the supreme law of the land, and any
law in conflict with it is void to the extent of that inconsistency.
b) Acts of Parliament, below the Constitution the next source of law is Acts
of Parliament, also known as statutes or primary legislation e.g., the Sale
of Goods Act Cap 31, governs specific contracts. Typically Acts of
Parliament will have a ‘chapter number’, designated as ‘Cap’, such as Cap
31 mentioned herein. The Attorney General assigns these chapters. Where
the A-G has not assigned a Cap number, the Act takes the designation of
the year it was passed. For instance, the Access to Information Act is
styled as the ‘Access to Information Act 2016’ because it has not yet been
assigned a chapter number.
c) Common law, rules of equity and statutes of general application in
force in England on August 12, 1897 rank just below statutory law such
as sources of law. Examples of such statutes of general application are The
Foreign Law Ascertainment Act 1890.
Common law is so called because it derives from common custom of the
people; it has been defined as ‘…that branch of the law of England
formulated, developed and administered by the courts on the basis of the
common custom of the country.’
Common law is therefore English judge-made law. It developed in
England over several centuries through the principles of stare decisis1 and
precedent, i.e., a decision of superior courts binds lower courts.
During the 1300s and 1400s, however, the King’s Courts became very
rigid. Examples of this rigidity were to be seen in:
i) The common law was overly technical; e.g., in procedural terms, for
instance, the use of the writ system. One had to have a proper writ in
which a claim is framed. Otherwise, the case would be dismissed.
ii) In substantive terms, the common law remedies were inadequate.
Damages2 were the only remedy at common law; whereas in some
cases, a claimant needed an order prohibiting someone from doing
something, for instance, being a nuisance by making noise. Damages
would never compensate such an aggrieved party – only an order
compelling the noisemaker to stop the nuisance. Thus, as a response to
this rigidity, a separate branch of law developed, equity.
Equity is so called because it was derived from notions of fairness,
equality and good conscience. It developed in the court of Chancery; that
was administered by the King’s Chancellor. The basis for equity was to
ask the king to ‘do right for the love of God and by way of charity’; given
the common law’s strict adherence to technical procedures that led to
severe miscarriages of justice. Equity sought to lessen the harsh effects of
the common law and developed some principles, or maxims that guide
courts.
The maxims of equity
1. He who seeks equity must do equity.
2. He who comes to equity must come with clean hands.
1
This simply means let the decision stand.
2
Damages simply means a sum of money to compensate one for some loss.
3. Equality is equity.
4. Equity looks to the intent rather than to the form.
5. Equity acts in personam – that is, it is directed at an individual. (The
opposite of this is in rem – against the whole world.)
6. Equity will not suffer a wrong to be without a remedy.
7. Delay defeats equity.
8. Equity follows the law.3
d) Customary law. This is however not a serious contender as a source of
law in Kenya. For instance, Section 3(2) of the Judicature Act removes
customary law jurisdiction from criminal cases and limits its application in
civil cases concerning personal law in so far as it is not repugnant to
justice and morality.
e) Another source of law is subsidiary legislation, (although not provided
for in the Judicature Act; it is therefore normally regarded as an informal
source of law.) These are rules made under an existing statute; for
instance, the famous ‘Michuki rules’ governing PSVs were made under
the Traffic Act. The Public Health Act, Cap 242, empowers the Minister
in charge of public health to make rules under that law for the better
protection of public health, e.g., the Tobacco Control Rules were made by
the – then Health Minister to prevent public smoking.
In contemporary times, in order to arrest and control the spread of
COVID-19, the Government of Kenya has enacted some subsidiary
legislation to give legal effect to these efforts. The general nationwide
curfew was imposed by the Public Order (State Curfew) Order 2020.
The order was enacted under the authority granted to the Cabinet Secretary
for the Interior for that purpose by the Public Order Act, Cap 56. On the
other hand, the specific rules and protocols for handling infected persons
and facilities where persons infected with COVID-19 are treated and the
general administration of persons in quarantine are contained in the Public
Health (Prevention, Control and Suppression of COVID-19) Rules
2020, made under the Public Health Act, Cap 242. The Act empowers the
Cabinet Secretary for Health to make rules for such purposes.
The Kenyan legal system and the hierarchy of courts in Kenya
As will be appreciated, the Kenyan legal system is based on English law.
Jurisdiction of a court
Jurisdiction means the competence, or authority, to hear a case. All institutions of the
state, including the courts, derive their jurisdiction from the law. The jurisdiction of
courts can be divided into two broad categories. Firstly, there is original jurisdiction,
and secondly, appellate jurisdiction.
Original jurisdiction means that a court hears the case at first instance, or for the first
time.
3
It should be noted that the maxims of equity overlap, sometimes if not always.
Appellate jurisdiction means that a court hears a case on an appeal from the court or
courts below it. The higher court is being asked to re-examine the lower court’s
determination and reverse the lower court’s decision. One may appeal from part of a
judgment or the whole of the judgment.
The hierarchy of courts in Kenya has the Supreme Court at the apex. It is composed
of seven judges, including a Chief Justice and Deputy Chief Justice. Its jurisdiction is
appellate, except in the case of presidential election petitions, where it exercises
original jurisdiction as the first and final court.
Below the Supreme Court is the Court of Appeal. Under section 7(1) of the
Judicature Act, it is composed of a maximum of thirty judges, and under the Court of
Appeal (Organization and Management) Act 2015 it must have a minimum of twelve
judges. Its jurisdiction is appellate only: it hears cases on appeal from the High Court.
The High Court is below the Court of Appeal. The Constitution confers on it a wide
jurisdiction by providing that it shall be a court of ‘unlimited original jurisdiction’,
except for presidential election petitions which are heard by the Supreme Court as the
first and final court.
In practice however, most cases are filed in magistrate courts. Section 4(1) of the
High Court (Administration and Organisation) Act 2015 provides that it shall be
composed of a maximum of two hundred judges.
Magistrates Courts are the lower courts, starting with the Chief Magistrate, then a
Senior Principal Magistrate, Principal Magistrate, Senior Resident Magistrate,
Resident Magistrate, (collectively (and rather confusingly!) these magistrate courts
are known as Resident Magistrate Courts). Formerly, there were district magistrate
courts but these were abolished. The Kadhi’s Court is a chief magistrate’s court, but
of limited jurisdiction, as it only handles matters of personal law for persons who
profess the Islamic faith.
Fundamental Concepts of Law
Some basic concepts which underpin any system of law are:
Rights and duties. At the heart of any legal system is the attempt at balancing various
groups’ and individuals’ interests. The law thus distributes rights and duties amongst
these disparate groups. Where a party X has a right against Y, then Y has a duty to X.
The Rule of law: This simply means that the government must act within the limits
set by the law. The principles that inform the concept of the rule of law are:
1. Natural justice; i.e., no one shall be condemned unheard.
2. Ultra vires doctrine i.e., one can only exercise powers that are conferred on
him.
Separation of powers: this means that the three arms of government are independent
(and interdependent, it must be added). Parliament enacts laws; the executive
implements and enforces the law, and the judiciary interprets the law.
Legal personality: this is a concept that speaks to the existence of an institution as a
body corporate. In law, there are two types of persons. Human persons, and bodies
corporate. Companies and state corporations, and states are legal persons.
