Part A: The legal system
Nature and sources of law
Key takeaways
- Law is the set of rules a state makes or recognises to govern behaviour, backed by the courts' power to enforce them; enforcement is what separates a legal rule from a merely moral or social one.
- Criminal law punishes a wrong against the public and must be proved beyond reasonable doubt; civil law compensates the injured party on a balance of probabilities, so one incident can give rise to both.
- Section 3 of the Judicature Act puts the Constitution first, then all other written law, then the common law, equity and the statutes of general application in force in England on 12 August 1897, so far as Kenya's circumstances permit.
- African customary law guides the courts in civil cases only, and gives way where it is repugnant to justice and morality or inconsistent with written law, as Rono v Rono shows for a custom excluding daughters.
- Only the ratio decidendi of a higher court's decision binds; obiter dicta, dissents and the decisions of foreign courts or courts of equal rank are persuasive only.
This chapter sets out what law is, where Kenyan law comes from, and how law relates to morality. Every rule covered later in this paper, from the structure of the courts to the law of contract, is either a source of law introduced here or an application of one.
The nature of law
Key terms
Three traits mark law out:
- Coercive: it is backed by a real state sanction.
- Normative: it says how people ought to behave, not merely how they do.
- General: aimed at whole classes of people rather than one named individual.
What it is FOR is keeping order, settling disputes without violence, protecting rights and property, and giving business and everyday life a framework predictable enough to plan around.
Classification of law
A given rule very often fits more than one of the classes below at the same time.
Law and morality: the two overlap heavily, most legal rules against theft or violence are also widely seen as morally wrong, but they are not the same thing. A rule can be widely regarded as morally right without ever being legally enforceable (helping a stranger in need), and legally binding without being universally seen as a moral matter at all (which side of the road to drive on).
Of all these classifications the one worth most marks, and the one most often muddled, is criminal against civil. The same incident can generate both: a driver who injures a pedestrian may be prosecuted for careless driving and separately sued in negligence, and the two are independent. An acquittal does not defeat the civil claim, because the standard of proof there is lower.
| Criminal law | Civil law | |
|---|---|---|
| Purpose | Punish and deter a wrong against the public | Compensate the injured party or enforce a right |
| Who brings it | The state, through the Director of Public Prosecutions | The aggrieved person |
| Standard of proof | Beyond reasonable doubt | On a balance of probabilities |
| Outcome | Conviction and sentence, or acquittal | Damages, an injunction or another order, or dismissal |
| Can the parties settle? | No, the state controls the prosecution | Yes, at any time |
Sources of law
Kenyan law is drawn from the sources below, from most to least authoritative. Section 3 of the Judicature Act fixes the core of the order: the Constitution, then other written law (Acts and the delegated legislation made under them), then the common law, equity and statutes of general application, with African customary law admitted by section 3(2); religious personal law and judicial precedent operate alongside them.
Exam tip
A question that asks you to rank or list 'the sources of Kenyan law' is testing this order from memory: Constitution, legislation, delegated legislation, common law and equity, African customary law, and (for adherents) religious personal law.
How the sources rank
Section 3 of the Judicature Act (Cap 8) is the ranking, and it is a hierarchy rather than a list: a source lower down applies only so far as the sources above it do not cover the question. Every court, from the Supreme Court to the subordinate courts, must exercise jurisdiction in conformity with the Constitution first, then all other written law, and then, so far as written law does not extend or apply, the substance of the common law, the doctrines of equity and the statutes of general application in force in England on 12 August 1897.
The first detail is that date. It is 12 August 1897, so an English statute passed after it is not received into Kenyan law by this route at all. The second is the proviso attached to the reception: the common law, equity and those statutes apply only so far as the circumstances of Kenya and its inhabitants permit, and subject to such qualifications as those circumstances render necessary. Kenyan courts may therefore decline an English rule that does not fit local conditions, and candidates who quote the reception without the proviso lose the mark.
African customary law and the repugnancy proviso
Section 3(2) treats customary law differently from every other source. The courts shall be guided by it in civil cases in which a party is subject to or affected by it, so far as it is applicable and is not repugnant to justice and morality or inconsistent with any written law. Four limits sit in that sentence: it guides rather than binds, it reaches civil cases only, it yields to any inconsistent written law, and it yields where it is repugnant to justice and morality.
The repugnancy proviso is where the marks are, because it lets a court refuse a custom that has been properly proved. Since 2010 it has been reinforced by the Constitution, which voids any law inconsistent with it, so a discriminatory custom is doubly vulnerable.
Rono v Rono & another [2005] KECA 326 (KLR)
On distribution of a deceased Keiyo man's estate it was argued that daughters take no share under Keiyo custom. The Court of Appeal held the custom could not defeat the daughters' claims: customary law is admitted by section 3(2) only so far as it is not repugnant to justice and morality or inconsistent with written law, and a rule excluding daughters is discriminatory. The court read the proviso with the constitutional bar on discrimination and Kenya's international obligations, and varied the shares in the daughters' favour.
Judicial precedent
Precedent works differently from the other sources: it is a doctrine about how they are applied. The binding part of a judgment is the ratio decidendi, the legal reason necessary to the decision on those facts. Everything else is obiter dictum, which may persuade a later court but cannot bind it. A precedent binds only a court below the one that gave it, and only where the material facts are the same, so a decision of a foreign court, of a court of equal rank, or a dissent, is persuasive only.
A court is not trapped by every earlier decision. It may distinguish the precedent on its material facts, follow a higher court's later ruling that overruled it, decline a decision given per incuriam in ignorance of a relevant statute or binding authority, or treat it as superseded where the statute it interpreted has since been amended or repealed.
Precedent is defended for the certainty it gives, for treating like cases alike, for the detail accumulated decisions provide, and for sparing judges the need to reason from first principles each time. It is criticised for rigidity where a bad decision persists, for the bulk of reported cases, for the artificiality of distinctions drawn to escape an unwelcome precedent, and for leaving law-making with unelected judges.
International law
Article 2(5) of the Constitution makes the general rules of international law part of the law of Kenya directly, without needing a separate implementing Act, and Article 2(6) does the same for any treaty or convention Kenya has ratified. This means an international obligation Kenya has signed up to can be relied on as a source of domestic law in its own right.
Self-check
(a) State the Judicature Act's ranking of the sources of Kenyan law, from highest to lowest authority. (5 marks)
(b) Explain why enforcement is described as the feature that distinguishes a legal rule from a merely moral or social one, using an example of a rule that is widely regarded as moral but not legally enforceable. (4 marks)
(c) Distinguish between common law and statutory law as sources of law, and explain which one Parliament directly produces. (4 marks)
(d) Explain the effect of Article 2(5) and 2(6) of the Constitution on how a ratified treaty becomes part of Kenyan domestic law. (4 marks)
(e) Classify the Income Tax Act under three of the classifications of law, explaining each classification briefly. (5 marks)
Show worked answer
(a) The Constitution of Kenya 2010; legislation (Acts of Parliament and county assemblies); delegated legislation; common law and doctrines of equity; African customary law; and religious laws (Islamic and Hindu law) for adherents in defined matters, with judicial precedent applying throughout to give consistency to how all of these are interpreted. (5 marks)
(b) Enforcement is the process by which the state compels compliance through the courts, the police and other state machinery, and it is this state-backed compulsion that distinguishes a legal rule from a merely moral one, a moral rule depends only on social disapproval or personal conscience for its force. Helping a stranger in genuine need is widely regarded as morally right, but no court will order a person to do so or punish them for failing to, it remains a moral expectation only, never a legally enforceable duty. (4 marks)
(c) Common law is judge-made law developed through decided cases rather than by Parliament, inherited from English law and adapted through Kenyan precedent. Statutory law is law enacted by Parliament (Acts) or a county assembly, made through the formal legislative process. Parliament directly produces statutory law; common law instead develops through the accumulated decisions of judges over time. (4 marks)
(d) Article 2(5) makes the general rules of international law part of the law of Kenya directly, without needing a separate implementing Act, and Article 2(6) does the same for any treaty or convention Kenya has ratified. This means a ratified treaty becomes part of Kenyan domestic law automatically upon ratification, without Parliament needing to pass a further, separate domesticating statute repeating its terms, unlike some other legal systems where a ratified treaty has no direct domestic legal effect until Parliament enacts implementing legislation. (4 marks)
(e) The Income Tax Act is revenue law (it governs the assessment and collection of taxes), statutory law (it was enacted by Parliament as an Act), and public law (it governs the relationship between the state, through the tax authority, and individual taxpayers, rather than a relationship between two private persons). (5 marks)