Nature, purpose and classification of law

Last updated November 202612 sectionsabout 18 min read

Every other chapter in this paper, and every other law paper in the KASNEB syllabus, assumes an answer to the questions this one asks directly: what law is, why it exists, how it is classified, and where Kenya's own law actually comes from. Section 3(1) of the Judicature Act (Cap 8) is the single most important provision in the whole chapter, since it is the statute that names, in order, every source the rest of this chapter and the rest of the paper draws on.

Meaning of law

Law is the body of rules, made and enforced by the state, that governs the conduct of persons within a given society, and that the state's courts and other institutions will enforce, if necessary by compulsion. Three elements recur in every serious definition:

• Law is a rule (general and stated in advance, not an ad hoc decision made after the fact).
• It is made or recognised by a body with authority to do so (a legislature, a court developing precedent, or a custom the state has come to recognise).
• It is enforceable, backed by the state's own coercive power rather than left to voluntary compliance or social pressure alone.

This last element distinguishes law from a merely moral or social rule: a person who breaks an etiquette convention faces disapproval; a person who breaks the law faces the state's own machinery of courts, judgments and, where necessary, force.

Nature of law

• Normative: law prescribes what ought to be done, not merely what is observed to happen, so it can be broken (which a scientific law of nature, gravity, for instance, cannot)
• General and prospective: a law applies to a defined class of persons or situations in advance, rather than being invented for one person or event after it has already happened
• Coercive: ultimately backed by the state's power to enforce compliance, through the courts and, where necessary, the police and prison system
• Territorial, with exceptions: Kenyan law generally applies within Kenya's territory, subject to specific extraterritorial provisions (certain criminal offences, for instance) and to the international law obligations Article 2(5) and (6) recognise
• Dynamic: law changes over time, through legislation, judicial development of precedent, and the evolution of custom, rather than remaining fixed once enacted
• Sanctioned by a recognised authority: a rule becomes law only once made or recognised through a process the legal system itself accepts as valid (Parliament enacting a statute, a court's decision within the doctrine of precedent, or a custom the courts have come to recognise), which is what the Judicature Act's own hierarchy exists to settle when more than one possible source is in play

Purpose of law

• Maintaining social order and preventing the chaos that would follow if disputes were resolved solely by private force
• Protecting individual rights and freedoms, most visibly through the Bill of Rights in Chapter Four of the Constitution of Kenya, 2010
• Facilitating and regulating economic and social transactions, so that a contract, a sale, or a partnership can be entered into with confidence it will be enforced if the other party defaults (the commercial law chapters that follow are, in large part, law performing exactly this function)
• Resolving disputes through an authoritative, impartial mechanism (the courts, and the alternative mechanisms the chapter on dispute resolution covers) rather than leaving resolution to whichever party has more power
• Promoting justice and fairness, including redistributive justice through taxation and social policy, and corrective justice through the civil and criminal law's remedies
• Providing certainty and predictability, so that a person can plan their affairs knowing in advance what the legal consequences of a given action will be

Classification of law

The same rule can sit in more than one classification at once without contradiction: the law of contract is private, substantive, and (once enacted or recognised in Kenya) national law, all three descriptions applying simultaneously, since the classifications answer different questions (who it governs, what it does, where it applies) rather than competing for the same slot.

Law and morality

Morality is a system of beliefs about right and wrong conduct, held by a society or an individual, enforced (if at all) by conscience, social disapproval or religious sanction rather than by the state's own coercive machinery.

Law and morality overlap substantially, most criminal law reflects a moral judgement that the conduct it prohibits is wrong, but they are not the same thing: some legal rules are morally neutral (which side of the road to drive on), and some conduct many regard as immoral is not illegal (a broken promise that falls short of a binding contract), while, more controversially, some legal rules have themselves been criticised as unjust or immoral, which is precisely the kind of claim a constitutional challenge under the Bill of Rights is designed to test.

The two systems influence each other continuously: law reform is often driven by a shift in a society's moral views, and the law itself shapes moral views over time by normalising or stigmatising particular conduct.

The Constitution

The Constitution of Kenya, 2010 is, under Article 2, the supreme law of Kenya, binding all persons and all state organs, and any other law inconsistent with it is void to the extent of the inconsistency. It sits at the top of the Judicature Act's own hierarchy of sources, above every Act of Parliament, and every other source of law this chapter and this paper cover is valid only to the extent it is itself consistent with the Constitution.

As the supreme, foundational source it establishes the organs of government (the Executive, the Legislature, and, most relevant to administrative law and the court system, the Judiciary), guarantees the Bill of Rights in Chapter Four, and entrenches the devolved system of county government the opening chapters of Public Finance and Taxation build on.

Legislation and delegated legislation

Delegated (subsidiary) legislation

Detailed rules a body other than Parliament makes, under authority an Act of Parliament (the parent or enabling Act) itself confers: regulations, rules, orders and by-laws made by a Cabinet Secretary, a regulatory authority, or a county executive committee. Delegated legislation is used because Parliament cannot itself work out every technical, frequently changing detail a modern regulatory scheme needs, and it is examined in full in the chapter on administrative law, since controlling its scope is one of administrative law's central concerns.

Substance of common law and doctrines of equity

Common law

The body of law English courts developed, historically, through judicial decisions rather than legislation, applying customary rules of the realm consistently across the country (hence 'common'); received into Kenyan law under section 3(1)(c) of the Judicature Act as one of the sources Kenyan courts apply, so far as the circumstances of Kenya and its inhabitants permit and subject to such qualifications as those circumstances may render necessary.

Why they still matter in Kenya

Much of contract, tort, agency and property law this guide covers, in the chapters that follow, is itself common law and equity, received under section 3(1)(c) and then, in many areas, subsequently codified or modified by a Kenyan statute (the Sale of Goods Act, the Law of Contract Act); where no Kenyan statute displaces it, the common law or equitable rule, as developed in the English courts and applied by Kenyan courts as persuasive authority, remains the law.

African customary law

African customary law is the body of customs, traditions and practices a particular Kenyan community observes and treats as binding, recognised as a source of law under section 3(1) of the Judicature Act. Its application is narrower than the general sources above: it applies primarily in civil matters (marriage, divorce, succession, land held under customary tenure) between persons subject to it, and only so far as it is applicable and is not repugnant to justice and morality, a limitation courts apply to exclude a customary practice that offends fundamental fairness or, since 2010, the Bill of Rights, however genuinely rooted in a community's tradition it might otherwise be.

Article 2(4) of the Constitution reinforces this: any law, including customary law, that is inconsistent with the Constitution is void to the extent of the inconsistency.

Islamic law, Hindu law and African customary law

Beyond general customary law, Kenya specifically recognises the personal law of particular religious communities for matters of personal status.

Islamic (Sharia) law applies to questions of personal status, marriage, divorce and inheritance among persons who profess the Muslim faith, and is applied by the Kadhis' Courts (see the chapter on the court system), a court system the Constitution itself establishes under Article 170 specifically for this purpose; Hindu law similarly governs marriage, divorce and succession among Kenyans of the Hindu faith who have opted to be governed by it, under the Hindu Marriage and Divorce Act and related legislation; and African customary law, covered separately above, does the same for adherents of a particular community's customary practice.

All three exist alongside, and are subordinate to, the Constitution and general statute law, giving Kenya's legal system a genuinely plural character in matters of personal status even as commercial and criminal law apply uniformly to everyone regardless of religion or community.

Judicial precedent

Judicial precedent (stare decisis, 'to stand by things decided') is the doctrine that a court is bound to follow the legal principle (the ratio decidendi) an earlier decision of a court above it, or, depending on the court, of equal standing, established on materially similar facts, so that like cases are decided alike and the law develops predictably rather than afresh in every case. Kenya's court hierarchy (see the chapter on the court system) fixes the binding relationship:

• A decision of the Supreme Court binds every other court.
• A decision of the Court of Appeal binds the High Court and every subordinate court but not the Supreme Court.
• A decision of the High Court binds subordinate courts but not another High Court judge (persuasive only, between judges of equal rank).
• An observation in a judgment that was not necessary to the actual decision (obiter dictum) is never binding, only ever persuasive, however eminent the court that made it.

Judicial precedent is itself one of the sources of law section 3(1) of the Judicature Act recognises, and it is through precedent that the common law and equity actually develop and are applied to new Kenyan facts.

These cases are English decisions. Those decided before 12 August 1897 are part of the common law received under section 3(1)(c) of the Judicature Act (Cap 8); later ones are persuasive, not binding, in Kenyan courts; where a Kenyan statute now states the rule, cite the section first and the case as the origin of the principle.

International law and treaties

Article 2(5) of the Constitution of Kenya, 2010 provides that the general rules of international law form part of the law of Kenya, and Article 2(6) provides that any treaty or convention ratified by Kenya forms part of Kenyan law under the Constitution, giving international law direct, constitutionally entrenched domestic effect rather than requiring a separate domesticating Act for every treaty before it has any legal force at all, the position many other common law jurisdictions (a purely dualist system) still take.

This matters directly for a commercial paper: many of the international sale, carriage and payment instruments the chapters on sale of goods and negotiable instruments touch on derive from international conventions and standardised trade terms Kenya has ratified or adopted, so their status as part of Kenyan law traces directly back to these two constitutional provisions rather than to a separate domestic statute for each one.