Fundamentals of Law and Ethics cheat sheet

Key terms

Law

A body of rules, made or recognised by the state, that governs the conduct of persons within a society and is enforceable through the courts.

The jurisdiction of the state

The territorial and legal authority within which a state's courts and institutions may make and enforce law, ordinarily the state's own territory and its citizens wherever they are.

Enforcement

The process by which the state compels compliance with the law, through the courts, the police, and other state machinery, distinguishing law from a merely moral or social rule.

Natural law

Law derives its authority from morality, reason or divine order, so an enactment that is grossly unjust is not truly law and need not be obeyed. This thinking underlies constitutional bills of rights and the post-war war crimes trials.

Positivism

Law is whatever the sovereign commands, and its validity depends on how it was made, not on whether it is just. An unjust statute is still law, and the remedy is to repeal it, not to deny that it exists.

Historical school

Law is the organically evolved custom and spirit of a particular people, so it cannot be imposed from outside and grows with the community it serves. This explains why customary law persists alongside imported statute.

Sociological school

Law is a tool for balancing competing social interests and should be judged by the social consequences it produces rather than by its internal logic.

Administrative law

The law governing the powers, procedures and accountability of government departments and public bodies.

Revenue law

The law governing the assessment and collection of taxes and duties, for example the Income Tax Act and the Value Added Tax Act.

Criminal law

Law that defines conduct as an offence against the state and provides for punishment, prosecuted by the state in the name of the Republic.

Civil law

Law that governs disputes between private persons, for example over a contract or a tort, remedied by damages or another court order rather than punishment.

Common law

Law developed by judges through decided cases rather than by Parliament, inherited from English law and adapted through Kenyan precedent.

Statutory law

Law enacted by Parliament (Acts) or a county assembly, the primary source of new law in a modern legal system.

Constitution law

The body of rules, found chiefly in the Constitution of Kenya 2010, that establishes the organs of government, distributes power between them, and guarantees fundamental rights.

Private and public law

Private law governs relationships between individuals (contract, tort, property); public law governs the relationship between the state and individuals, and between organs of the state (constitutional and administrative law).

The Constitution of Kenya 2010

The supreme law of Kenya (Article 2): any other law inconsistent with it is void to the extent of the inconsistency, and every person is bound by it.

Legislation

Acts of Parliament and Acts of the county assemblies, the principal source of new law, made through the formal legislative process.

Delegated legislation

Rules, regulations and orders made by a person or body (typically a Cabinet Secretary) under authority conferred by an Act of Parliament, allowing detailed or technical rules to be made without a fresh Act each time.

Common law and doctrines of equity

Judge-made rules inherited from England: common law developed through the ordinary courts, and equity developed to soften its rigidity, both received into Kenyan law to the extent the circumstances of Kenya permit.

African customary law

The customs of a community, applied mainly in matters of personal status, marriage, divorce and succession between persons subject to it, so long as it is not repugnant to justice and morality or inconsistent with any written law.

Religious laws: Islamic law and Hindu law

Personal-law systems applied to adherents of a particular faith in defined matters, most visibly Islamic law in the Kadhis' Courts on questions of Muslim personal status.

Judicial precedent

The doctrine of stare decisis: a decision of a higher court on a point of law binds lower courts in later cases with materially similar facts, giving the law consistency and predictability.

Meaning of administrative law

The branch of public law regulating the powers, functions and procedures of public bodies, and the means by which their decisions can be challenged.

Functions of administrative law

The functions are:

Control of administrative bodies: executive, legislative and judicial

Administrative power is checked:

Illegality

The decision-maker misunderstood or exceeded the power the enabling law gave them, acted for an improper purpose, took account of irrelevant considerations or ignored relevant ones, or unlawfully delegated or fettered a discretion. This is the ultra vires principle.

Irrationality

The decision is so unreasonable that no reasonable authority properly directing itself could have reached it. The threshold is deliberately high, so mere disagreement is not enough.

Procedural impropriety

The decision-maker failed to follow the procedure the law prescribes, or breached the rules of natural justice by denying a hearing or deciding with an interest in the outcome.

Ethical norms

The shared standards of acceptable conduct within a society or a profession, against which particular actions are judged right or wrong.

Theories of morality

Frameworks for deciding what is right:

Universal moral principles

Values widely accepted across cultures and professions: honesty, fairness, respect for persons, avoiding harm, and accountability for one's actions.

Ethical dilemmas and unethical conduct

An ethical dilemma arises where two or more values genuinely conflict and every available choice has a cost, for example loyalty to an employer against a duty to report fraud; unethical conduct is a clear breach of an accepted standard, for example bribery, fraud or knowingly misstating accounts.

Code of ethics

A formal statement, issued by a profession or an organisation, of the standards of behaviour expected of its members, for example ICPAK's Code of Ethics for professional accountants.

Integrity

Being straightforward and honest in all professional and business relationships, and not being associated with information believed to be false or misleading.

Confidentiality

A duty to respect the confidentiality of information acquired in the course of professional or business relationships, and not to disclose it without proper authority unless there is a legal or professional right or duty to do so.

Independence

Freedom from conditions or relationships that would compromise professional judgement, in both fact (independence of mind) and appearance (independence others can see).

Conflict of Interest and Related Party Transactions

A conflict of interest arises where a personal interest could improperly influence professional judgement; a related party transaction (with a director, a family member, or an associated company) carries the same risk and must be disclosed and, where material, independently scrutinised.

Whistle blowing and relevant protection mechanisms

Reporting suspected fraud, corruption or other wrongdoing to an appropriate authority, protected in Kenya by mechanisms such as the Witness Protection Act, internal whistle-blower policies, and provisions of the Bribery Act, 2016 and the Anti-Corruption and Economic Crimes Act.

Nature of alternative dispute resolution

Mechanisms for resolving disputes outside ordinary court litigation, generally faster, cheaper, more confidential and less adversarial, so that a business relationship can often survive the dispute.

General principles of ADR Negotiation

Negotiation is the most informal mechanism: the parties bargain directly with each other, voluntarily, with no third-party decision-maker, and either reach a settlement or fail to.

Mediation

A neutral third party (the mediator) facilitates discussion and helps the parties reach their own settlement; the mediator has no power to impose an outcome, and any settlement is only binding once the parties agree to it.

Traditional dispute resolution mechanisms

Resolution of disputes by elders or customary councils applying a community's own customs; recognised by Article 159(2)(c) of the Constitution provided the process is not repugnant to justice and morality and is not inconsistent with the Constitution or any written law.

Arbitration

The parties refer their dispute to one or more arbitrators, chosen by them or under a pre-agreed procedure, whose decision (the award) is final and binding and enforceable through the High Court; more formal than mediation, governed in Kenya by the Arbitration Act, 1995.

Legislative provisions on ethical conduct

Statutes that turn an ethical expectation into a binding legal duty, so that a breach carries a legal, not merely a professional, consequence.

The Constitution

Chapter Six of the Constitution of Kenya 2010, 'Leadership and Integrity', sets binding ethical standards for every State officer, including selection on the basis of integrity and accountability to the public.

Public Officers Ethics Act

Gives effect to Chapter Six for public officers generally: prescribes a code of conduct and ethics, and requires periodic declaration of income, assets and liabilities.

Leadership and Integrity Act, other legislative and regulatory requirements

Elaborates the Chapter Six standards for State officers specifically, and sits alongside other integrity legislation such as the Ethics and Anti-Corruption Commission Act and the Bribery Act, 2016.

Role of KASNEB, professional bodies and other regulatory bodies in enforcing ethical conduct

KASNEB and bodies such as ICPAK and the Law Society of Kenya set codes of ethics for their members and candidates, investigate breaches through disciplinary committees, and can suspend, deregister or otherwise sanction a member who falls short.

Penalties and sanctions for unethical conduct

Range from a reprimand or a warning, through suspension or deregistration from a professional body, to fines and, where the conduct is also a criminal offence (bribery, fraud), prosecution.

Online commercial transactions

Contracts formed and performed electronically raise questions of when and where acceptance takes effect, and of the validity of an electronic signature, addressed in Kenya principally by the Kenya Information and Communications Act and the Data Protection Act, 2019.

Impact of COVID-19 pandemic on commercial transactions

The pandemic tested force majeure and frustration clauses at scale, accelerated remote and virtual court hearings, and pushed a large volume of business online.

Online business registration services

The eCitizen platform and the Business Registration Service now let a proprietor reserve a name and register a business name or a company entirely online, without a physical visit to the Registrar.