CFFE Module I
Overview of the Legal and Justice System flashcards
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How does a civil fraud action differ from a criminal fraud action?
Civil: brought by the victim (claimant), for compensation, on the balance of probabilities; the claimant may settle at any time. Criminal: brought by the state through the Office of the Director of Public Prosecutions, for punishment and deterrence, on proof beyond reasonable doubt; the victim cannot simply withdraw the charge. The same conduct can give rise to both at once.
What is the difference between substantive law and procedural law?
Substantive law defines rights, duties and prohibited conduct: what the rule is and whether it was broken (for example, the Penal Code's definition of theft). Procedural law governs how the rule is enforced and proved (for example, the Criminal Procedure Code's search and seizure rules). Evidence gathered in breach of procedure can be excluded however clearly it proves the fraud.
Is Kenya a unitary or a federal state?
A devolved unitary state. The Constitution of Kenya, 2010 created 47 county governments (article 176) with functions listed in the Fourth Schedule, but sovereign authority remains at the national level. Devolution within a unitary state is not federalism.
Which courts are superior courts and which are subordinate courts under article 162?
Superior: the Supreme Court, the Court of Appeal, the High Court, and the two courts of equal status to the High Court (the Employment and Labour Relations Court and the Environment and Land Court). Subordinate (article 169): the Magistrates Courts, the Kadhis' Courts, the Courts Martial, and any other court or tribunal Parliament establishes.
What civil pecuniary limits does section 7 of the Magistrates Courts Act, 2015 set for each rank of magistrate?
Chief Magistrate: KES 20,000,000. Senior Principal Magistrate: KES 15,000,000. Principal Magistrate: KES 10,000,000. Senior Resident Magistrate: KES 7,000,000. Resident Magistrate: KES 5,000,000. The Chief Justice may revise them by Gazette notice; a claim above the limit goes to the High Court.
What is the difference between jurisdiction and venue?
Jurisdiction: a court's legal authority to hear and decide a type of case at all, by subject matter, value (pecuniary) and territory. Venue: the proper registry or station within that jurisdiction where the case should be filed. A court with jurisdiction can still be the wrong venue, and then the case may be transferred rather than dismissed.
How do negotiation, mediation, conciliation and arbitration differ in the third party's role?
Negotiation: no third party. Mediation: the mediator facilitates communication but does not propose solutions. Conciliation: the conciliator proposes terms the parties may accept or reject. Arbitration: the arbitrator imposes a binding award.
What sources of law does section 3 of the Judicature Act (Cap 8) set out?
1. The Constitution. 2. Statutes (Acts of Parliament and specified UK Acts in force in Kenya at independence). 3. So far as those written laws do 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, applied only so far as the circumstances of Kenya and its inhabitants permit.
What is the reliable test separating the adversarial process from the inquisitorial one?
Who drives the fact-finding. Adversarial (common law, Kenya): the opposing parties' advocates present and test the evidence before a neutral, largely passive judge. Inquisitorial (civil law): the judge, or an investigating magistrate before trial, actively investigates the facts and directs the evidence gathered.
Who appoints special magistrates under the Anti-Corruption and Economic Crimes Act, 2003, and who qualifies?
The Chief Justice appoints them to try corruption, bribery and economic crime offences, and related conspiracy, attempt or abetment. The appointee must be or have been a chief magistrate or a principal magistrate, or be an advocate of at least ten years' standing.
What does article 2 of the Constitution of Kenya, 2010 mean for other laws?
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Why does constitutional law matter to a fraud examiner running an investigation?
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What is statutory law, and where does it rank?
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Which statutes define fraud offences, govern their proof, and deal with tracing the proceeds?
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What does administrative law govern, and which Kenyan Act gives fair administrative action statutory effect?
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What is common law, in the sense used when classifying types of law?
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What does civil law govern, in the sense set against criminal law?
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Who prosecutes a criminal fraud in Kenya, and under which constitutional article is that office established?
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Why does a cross-border fraud need international law?
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What is a unitary system of government?
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What is a federal system of government? Give examples.
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Name county functions listed in the Fourth Schedule to the Constitution.
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Why does Kenya being unitary rather than federal matter to a fraud investigation?
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What is the composition and jurisdiction of the Supreme Court?
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What jurisdiction does the Court of Appeal have?
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What jurisdiction does the High Court have under article 165?
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Where is a dismissed employee's unfair termination claim heard, even if a fraud allegation lies behind it?
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In a forged land title fraud, where does the land dispute go and where does the prosecution go?
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Can a fraud case be litigated at the International Court of Justice?
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What is a Court Martial?
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What is the jurisdiction of a Kadhi's Court?
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How do tribunals differ from courts?
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What claims does the Small Claims Court hear?
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What is the ordinary route of appeal through Kenya's courts?
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What principle on jurisdiction comes from Macharia & another v Kenya Commercial Bank Ltd & 2 others?
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A company's civil claim to recover KES 45,000,000 from a former director: which court?
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What does article 159(2)(c) of the Constitution say about ADR, and what limit does article 159(3) add?
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What are the general principles of ADR?
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On what is the Arbitration Act, 1995 (Cap 49) based, and how is an award enforced?
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How does court-annexed mediation work under the Civil Procedure (Court-Annexed Mediation) Rules, 2022?
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Can a criminal fraud prosecution be resolved by ADR?
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What is a Dispute Review Board?
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What did the Supreme Court hold in Nyutu Agrovet Limited v Airtel Networks Kenya Limited?
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How does stare decisis operate across Kenya's court hierarchy?
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What part of a precedent binds, and what does it mean to distinguish one?
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What does Dodhia v National & Grindlays Bank Ltd and Another say about precedent in East Africa?
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What is the primary source of law in a civil law system, and what role does case law play?
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What did the High Court decide in Julius Meme v Republic & another?
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How to revise with these cards
- Answer out loud or on paper before you turn the card: recalling is what fixes it.
- Go through the deck in short sessions of ten to fifteen minutes, every day.
- Shuffle once you know the order, so you are not answering from memory of the sequence.
- When a card catches you out, read the chapter it links to, then try the topic in a past paper.