Sources of Law in Kenyan Context

  

Date Posted: 6/25/2019 1:20:31 AM

Posted By: GITHOME  Membership Level: Silver  Total Points: 108

---

SOURCES OF LAW

This implies the origin or where specific laws derive their source from. In the world over, laws have been found to drive their source from the constitutions, the customs, norms and values of society, legislation and judge made decisions.

In Kenya, the laws have been derived from the Kenya National Constitution, the legislation i.e. parliamentary acts, subsidiary legislation, the substance of common law and the African customary law.

The Constitution of Kenya

The Kenyan constitution is written, enacted on 12th Dec, 1963, amended on 12th Dec, 1964 so as to establish the Republic of Kenya with a President as the head of state. Other amendments were made in 1969 and the current new constitution in 2010 which made a major shift in its framework and values in that it created two levels of governance.

The constitution is supreme and takes precedence over all other forms of law, written or unwritten. If any other law is inconsistent with the constitution, the constitution prevails and the other law to the extent of inconsistence is void. The Constitution has 18 chapters as follows:
Chapter I: The Sovereignty of the People and the Supremacy of the Constitution.
Chapter II: The Republic of Kenya
Chapter III: Citizenship
Chapter IV: The Bill of Rights
Chapter V: Land and Environment
Chapter VI: Leadership and Integrity
Chapter VII: Representation of the People
Chapter VIII: The Legislature
Chapter IX: The Executive
Chapter X: The Judiciary
Chapter XI: Devolved Government
Chapter XII: Public Finance
Chapter XIII: Public Service
Chapter XIV: National Security
Chapter XV: Commissions and Independent Offices
Chapter XVI: Amendments of the Constitution
Chapter XVII: General Provisions
Chapter XVIII: Transitional and Consequential Provisions
Schedules: Schedules 1-6

The constitution creates new institutions and new structures that demand for new laws to the institutions to function. Such institutions include Supreme Court, Constitutional implementation commission, and judicial service commission, among others. It also introduces concepts such as gender equality, and other new legal requirements whose implementation demands that parliament make new

laws.

Legislation
This is divided between direct and indirect legislation. Direct is by the parliament whereas indirect is by other bodies into which law making process is delegated.

Direct Legislation
This means the acts of parliament and all other written laws such as subsidiary legislation which are made under the authority of an act of parliament. These include the Kenyan Acts, specific Acts of the parliament of the United Kingdom and the law of contract, and one Act of the Parliament of India and English statutes of general application in force in England on 12th Aug., 1897 applicable in Kenya.

The legislative power of parliament is exercised by bills passed by the National assembly. The effect of the new act is that it binds all people in Kenya, not discriminative and all are equal before the law.

Parliament is sovereign; it can make, amend or repeal any law subject to the constitution. Society needs keep on changing and the law making, amendments and repeal is continuous to meet the unending demands of society.

Types of Bills
1. A government Bill: presented in the parliament by Government minister or on behalf of the Government
2. A private Member’s Bill: Presented to parliament by a Member of Parliament on their private capacity.
3. A Public Bill: A bill that proposes a law of general application throughout the jurisdiction
4. A Private Bill: As also called private legislation and seek to benefit few individuals or locality.

Legislative process under the Constitution of Kenya 2010
National Assembly
• Bill enters the National Assembly
• First Reading (No debate)
• Second Reading (The Bill is debated on the floor parliament) voted for its merit. If it fails to sail through it can be shelved for 6 months before re-introduction.
• Committee stage (clause-by-clause scrutiny of the Bill)
• Report stage (Amendments considered on the floor)
• Third reading (Final version of the Bill is debated and voted for). If it fails it is lost.
Senate
• The Bill passes to Senate
• The Bill goes through stages similar to the those in the National Assembly
• Reconciliation of the texts between Senate and National Assembly
• The Bill taken for the Royal/Presidential Assent (The President can accept or reject the proposed law. If rejected the bill is sent back to the parliament for correction. The parliament may either change according to president’s advice or decide to raise a 2/3 majority to make the bill into a law.
• Implementation of the Act of parliament.
NB: This process is normally followed when bills touching on the jurisdiction of the other parliament are enacted.
Laws made by the parliament are known as statute laws.
Advantages of Statute law
• It is democratic
• Leads to resolution of legal problems
• Is dynamic
• Is flexible
• Is uniform
• Is made through a process that is open to the public

Disadvantages of Statute Law
• They are bulky and technical
• They follow a lot of formalities
• Some of the laws made are not democratic
• Most statutes represent the wishes of Member of Parliament
• The possibility of making defective laws is high.

Subsidiary Legislation

Refers to a delegated legislation done by professional bodies, the local authorities etc. They are usually subject to the Act of parliament. Any diversion from the mother acts or exceeds the ambit of the statutory authority; then the courts can declare such a legislation ultra vires i.e. outside the delegated powers and therefore void.

Delegated legislation done due to inadequacy of parliamentary time to legislate all laws, the technical nature of law making, the need for flexibility, need for rapid action, legislation is skeleton leaving the flesh to be filled by delegated legislation, inadequate parliamentary control, lack of judicial control etc.

The Justification for Delegated Legislation
• Insufficient time for parliament to make all laws
• Speed and Efficiency
• Technicality of Subject matter
• Flexibility
• Need for detailed legislation

Criticism against Delegated Legislation
• It is less democratic
• There is inadequate publicity
• It is difficult to control and regulate the law-making process
• There is a high possibility of abusing the law
• Sheer volume causes complexity


Judicial Precedents
These are also known as judge – made law or case law. Refers to decisions made by superior courts. It is biding to all lower courts.

When is precedent binding?
• The decision must have been made by a superiors court in hierarchy for it to bind subordinate courts
• The legal point and facts involved in a case must be the same as those covered by an existing judicial precedent.
• The decision must not have been reversed by the court
• A decision reached per incuriam is not binding.
• The decision must have been made in the same jurisdiction.

Forms of Judicial Precedents
• Original precedent: a decision of a court on an issue that has never been determined by the court before
• Binding Precedent: a precedent from an earlier case which must be followed even if the judge in the latter case does not agree with the legal reasoning.
• Persuasive Precedent: A precedent that is not binding on the courts but a judge may be persuaded to follow its findings.
• Declaratory Precedent: The judge merely declares what the law has always been.
• Distinguishing Precedent: a tool used by judges to avoid following a previous decision which may be binding.
• Over-ruling Precedent: where a court in latter case states that the legal rules decided in an earlier case has been strongly decided.
• Reversing Precedent: This is where a court higher up in hierarchy overturns the decision of a lower court in the same case.

The Substance of Common Law

This refers to the doctrines of equity and the statutes of general application in England on 12th Aug, 1897 applicable so far as the circumstances of Kenya and its inhabitants apply and subject to such qualifications as those circumstances may render necessary. Although Common Law originally was unwritten, the crimes defined in it were incorporate in Kenyan law with the advent of colonialization of Kenya, thus making Common law a source of Kenyan Law.


Customs and the African Customary Law
This is applicable in civil cases in which one or more of the parties is subjected to it or affected by it. So far as is applicable and is not repugnant to justice and morality or inconsistent with any written law. It should be noted that African Customary law was used as source of criminal during the colonial era but was abolished after independence. Keen observation however reveals that some of the crimes as defined today had their origin from African customary law.

Criteria that must be satisfied for custom and customary laws to be used as law:
• There must be consistency of practice
• Its existence must be certain, proven and provable
• It must be reasonable
• It should not be repugnant to justice and morality or to modern civilization
• Must be consistence with written law
• One or more of the parties must be subject to it or affected by it.


The Islamic Law

Applicable to Kadhi courts when both parties profess the Muslim religion and in relation to divorce, marriage and personal status.

For other information consult http://hakiafrica.or.ke/wp-content/uploads/2017/02/Introduction%20to%20Kenyan%20Law%20(Booklet).pdf


COURT SYSTEM AND TRIBUNAL IN KENYA

The Judiciary

The government is divided into three arms namely the Executive which administers the law, the Legislature which makes the law and the Judiciary which adjudicates on the disputes which arise out of those laws. The separation of functions is appropriate to avoid a tyrannical government. The judicial authority is exercised by the courts and judges. Here citizens demand rights, seek liberty from the state control, resolve conflicts and find their conduct under public scrutiny - with regard to the following principles
• Justice shall be done to all without regard to one’s station in life
• Justice shall not be delayed
• Alternative approach to dispute resolution shall upheld – reconciliation, mediation, arbitration, and traditional dispute mechanisms. The traditional is applied when not contravening the bill of rights, repugnant to justice and morality or the results leading to repugnance or morality
• Protection of the principles of the constitution

The judiciary in Kenya enjoys independence as provided in the constitution

What are the main functions of the Judiciary?
Administration of justice is the primary function of the judiciary. However, the judiciary performs certain other function too. These functions may be judicial in character but some of these functions are non-judicial in nature. Following are some of the judicial and non-judicial functions performed by the judiciary.
(1) Judicial Functions: Firstly, when a dispute is brought before a court, it is the responsibility of the court to 'determine the facts' involved. This may be
• Between individuals
• Between individuals and the state
Protect individuals, whether citizen or non-citizen against the excesses of the government or arbitrary action of its agents
Tries criminal cases
The usual manner in which the courts determine the facts is through evidence given by the contestants. Once the facts have been established, the court proceeds to decide what law is applicable to a particular controversy or circumstance. Herein the judiciary becomes the interpreter of laws, which is the prime function of the judiciary. So the major task of the judiciary is to 'determine' the facts of laws and to apply them to particular circumstance.
(2) Law-making Functions:
Secondly, the judiciary while interpreting the existing laws also performs the role of lawmaker. It may sound surprising, but 'judge-made' laws are common to all systems of jurisprudence. Such occasions arise when the provisions of the existing laws may be ambiguous, or sometimes two or more laws of a particular government appear to be in conflict under a given circumstance.
Herein the judiciary plays an important role in determining what the law is and when two laws apparently conflict, which shall prevail. For instance, the enunciation of the 'Doctrine of Implied Powers' by the U.S. Judiciary proved conducive to the growth of the federal government's power. However, the phraseology of the original U.S. Constitution did not provide such enormous power of the Federal Government. In this context, we fully realize the prime importance of the judiciary.
(3) Guardianship of the Constitution
The constitution determines all the organs of the government, composition, powers and duties and sets out the fundamental rights and freedoms of an individual. The judiciary protects the constitution by ensuring that the government actions are within the provisions and that the acts legislated are constitutional
(4) Advisory Jurisdiction:
Fourthly, some national judiciaries possess advisory jurisdiction. For instance, the President of India may seek the advice of the Supreme Court of India on any proposed legislation. However, there is no such provision in the U.S.A. The Canadian Supreme Court is also obliged under constitutional provisions to tender advice to the Governor General.
(5) Protector of the Fundamental Rights:
Fifthly, the judiciaries also act as the defenders of the individual's right. Such role of the judiciary is important as it prevents the individual's rights from being violated. An individual need not wait until harm is done to him. If he had, sufficient reasons to believe that attempts would be made to violate his 'rights' he could approach the courts for protection.
Then the courts would issue orders prohibiting such attempts until the rights of the parties were determined. Judiciary is the watchdog of rights and liberties of the people. In India, the Supreme Court is empowered to protect the Fundamental Rights of the citizens.
(6) Supervisory Function:
Sixthly, higher courts are often assigned the task of supervision over the lower courts. The Indian High Conn responsible for the supervision of their respective state judicial systems.
(7) Non-Judicial Function:
Lastly, the judiciary in some countries may perform a number of non-judicial functions. Courts may undertake the administration of property in cases where the ownership of property in question is in dispute. Courts also assume responsibility for handling the affairs of minor children or lunatics. Courts may be authorized to issue and cancel certain licenses. Courts also may be authorized to grant citizenship to aliens.
Read the Kenyan constitution Chapter 10 on Judiciary to understand the roles, duties, limitations, and powers of judiciary in Kenya.
Selection or Method of Appointment of Judges:
There are certain methods by which judge are selected in various States. One method of selecting judges is through an election by the people. Such a system now prevails in certain Cantons of Switzerland. Although this method may sound highly democratic, such a method of selection of the judge is unsound. Ordinary voters are not qualified to consider the suitability of judges. Moreover, a popularly elected judge is likely to favour the party, which sponsored his election.
A second method of appointing judges is through elections by legislature. This method is in vogue in Switzerland and some other States. Such a mode of appointment violates the theory of the separation of powers.
Moreover, if judges are appointed in this manner, the judiciary cannot function as the guardian of the constitution. Judges elected by the legislature are not likely to declare acts of the same legislature unconstitutional. Thus, the independence and impartiality of the judges would be lost.
A third method of appointing judges is by executive nomination. In India, the President of India nominates the judges of the Supreme Court and the High Courts. This is a satisfactory mode appointing the judges. Such appointments are generally made from and among the senior practicing lawyers.
A fourth method of selecting Judges is through a competitive examination. In France, judges are selected on the basis of a competitive examination conducted try the Ministry of Justice. In India, too, judges of the lower courts such as Munsifs are selected on the basis of competitive examinations.
Of all these methods, the most popular is the last mentioned mode of choosing judges, for it ensures the independence of the judiciary. Garner is of the opinion that judges should be appointed by the executive. But once appointed, the judges should be independent of the influence of the executive would hold office for life.
Independence of the Judiciary
Freedom of a state is guaranteed by an independent judiciary where judges make decisions without fear. No person by force or threats may pervert the course of justice to his own end

The independence of the judiciary in Kenya is ensured in the following manner
• In exercise of the judicial authority, the judges shall be subject only to the constitution and the law and shall not be subject to the control or direction of any other person or authority
• The chief justice is appointed by the president on advice from jsc and approval from parliament but cannot be easily removed or office abolished while the judge is in the office unless referred to a tribunal, reaches retirement age of 70 or resigns on his own volition
• The salaries of the judges are a permanent charge on the consolidated fund and review can be done in whole by parliament not to their disadvantage whether serving or retired
• No debate may be brought to parliament regarding decisions reached by judges in their course of duty
• No actions or suits may arise against decisions believed to be right or acted I good faith taken by the judges in the course of judicial process
• Judges have the power to punish persons for contempt of court for disobedience of the high court orders or bringing the court into disrepute or prejudice the fair trial
Organisation of the Judiciary
This refers to a formalised structure. It comprises all tangible and regularly occurring features which help to shape their members’ behaviour. Structures incorporate a network of roles and relationships and are there to help in the process of ensuring that collective effort is explicitly organized to achieve specified ends in this case the administration of justice (Child, 1977).
The overall management task is divided into a variety of activities, allocated to different parts of the organization, established means of control, co-ordination and integration as grounded under the constitution.
The structure of the organisation is a framework for getting things done. It consists of courts and tribunals, functions, formally constituted work teams into activities related to court processes, or professional disciplines are grouped together.
The structure indicates who is accountable for directing, coordinating and carrying out these activities and defines management hierarchies – the chain of command – thus spelling out, who is responsible to whom for what at each level in the organization (Armstrong, 2008)
The Judicial offices and Officers
The judiciary consists of judges of superior courts, magistrates, other judicial officers and staff.
The System of Courts
The superior courts i.e. e. Supreme Court, The Court of Appeal, the High Court. The subordinate courts that shall be established by an act of parliament.
• Supreme Court- Consist of Seven judges, the Chief justice as the president and the president of the court, The Deputy chief justice who shall deputize the chief justice and be the vice president of the court and five other judges.
This is the highest court, a legal and political institution. Rules on significant legal issues that have advanced up through a system of lower courts and on major constitutional disputes such as the division of power within the state it interprets how issues fit within the constitution. The court decisions have major ramifications for the rest of legal order
For the purpose of the proceedings it shall comprise of 5 judges. Its functions include;
• Original jurisdiction to hear and determine disputes relating to the elections to the office of president
• Appellate jurisdiction to hear and determine appeals from court of appeal – interpretation of the constitution and involving matters of public interest
• Advisory opinion to the national government regarding a matter of the county government
• Decisions of supreme court are binding on the lower courts
• Makes rules for exercise of its jurisdiction
Court of Appeal
Consists not less than 12 judges, shall elect president for the court from amongst the judges and has jurisdiction to hear cases from the high court as well other courts and the tribunals as shall be defined by a parliamentary act.

High Court

Shall consist of judges with following jurisdictions – unlimited jurisdiction in criminal and civil matters, violation, denial, or threats on rights, removal of persons appointed under the constitution, interpretation of the constitution, inconsistencies to the constitution, supervision to subordinate courts or tribunals r those with judicial powers, original and appellate jurisdictions.

Subordinate Courts

Include the magistrate’s court, the kadhis’ courts, the court martial and other tribunal

The kadhi’s court jurisdiction is limited to Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all parties profess the Muslim religion.


The Judicial service Commission

Composed of the chief justice and members drawn from the stake holders.
Conducts functions relating to training of members of the judiciary, promotion of efficient administration of justice, recruitment and discipline of judges and staff among others

The finances are a direct charge on the consolidated fund and run by the chief registrar of the judiciary under Judiciary fund

Ref;
Armstrong M. 10th Ed. 2006 Human Resource Management practice kogan Page ltd, London.

The Constitution of Kenya, 2010

Ref; Tudor J. the law of Kenya, Kenya Literature, Bureau, Nbi.

---

Next: Cholera outbreak in Nairobi
Previous: Study tips for candidates as they prepare for national examinations in Kenya