Introduction to Law and Governance cheat sheet

Nature, purpose and classification of law

• Law is a body of rules made or recognised by a body with authority and enforced by the state, which is what separates it from a moral or social rule backed only by conscience or disapproval.
• Law is classified by subject matter (public or private), source (written or unwritten), function (substantive or procedural), effect (civil or criminal) and application (national or international), and one rule can sit in several classes at once.
• Section 3(1) of the Judicature Act (Cap 8) ranks Kenya's sources: the Constitution first, then all other written law, then African customary law, the substance of the common law, the doctrines of equity and the statutes of general application in force in England on 12 August 1897.
• African customary law applies mainly in civil matters such as marriage, divorce and succession, and only so far as it is applicable and not repugnant to justice and morality or inconsistent with the Constitution.
• Under judicial precedent the ratio decidendi of a higher court binds the courts below it, while an obiter dictum is only ever persuasive.