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eSession 2

THE MAJOR LEGAL SYSTEMS OF THE WORLD

Introduction

Most nations today follow one of two major legal traditions: common law or civil law. The
common law tradition emerged in England during the middle Ages and was applied within
British colonies across continents. The civil law tradition developed in continental Europe at
the same time and was applied in the colonies of European imperial powers such as Spain and
Portugal. Civil law was also adopted in the nineteenth and twentieth centuries by
countries formerly possessing distinctive legal traditions, such as Russia and Japan, which

sought to reform their legal systems in order to gain economic and political power
comparable to that of Western European nation-states.

The Common Law and Civil Law Legal Systems

2.2.1 Common Law System

Common law traces its roots to the medieval idea that the law as handed down from the
king's courts represented the common custom of the people. It evolved chiefly from three
English Crown courts (common law courts) of the twelfth and thirteenth centuries: the
Exchequer, the King's Bench, and the Common Pleas.

Early common-law procedure was governed by a complex system of pleading, under which
only the offenses specified in authorized writs could be litigated. Complainants were required
to satisfy all the specifications of a writ before they were allowed access to a common-law
court. This system was replaced in England in mid-1800s.

The court of equity, which were instituted to provide relief to litigants in cases where
common-law relief was unavailable, later merged with common-law courts to constitute the
English legal system. This consolidation of jurisdiction over most legal disputes into several
courts was the framework for the modern Anglo-American judicial system.

Notable of the common-law system, courts base their decisions on prior judicial
pronouncements rather than on legislative enactments. Where a statute governs the dispute,
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judicial interpretation of that statute determines how the law applies. Common-law judges
rely on their predecessors' decisions of actual controversies, rather than on abstract codes or
texts, to guide them in applying the law. Common-law judges find the grounds for
their decisions in law reports, which contain decisions of past controversies. Under the
doctrine of Stare Decisis, common-law judges are obliged to adhere to previously decided
cases, or precedents, where the facts are substantially the same. A court's decision is binding
authority for similar cases decided by the same court or by lower courts within the same
jurisdiction.

The decision is not binding on courts of higher rank within that jurisdiction or in
other jurisdictions, but it may be considered as persuasive authority.

Because common-law decisions deal with everyday situations as they occur, social changes,
inventions, and discoveries make it necessary for judges sometimes to look outside reported
decisions for guidance in a case of first impression (previously undetermined legal issue).

The common-law system allows judges to look to other jurisdictions or to draw upon past or
present judicial experience for analogies to help in making a decision. This flexibility allows
common law to deal with changes that lead to unanticipated controversies. At the same
time, stare decisis provides certainty, uniformity, and predictability and makes for a stable
legal environment.

Under a common-law system, disputes are settled through an adversarial exchange of

arguments and evidence. Both parties present their cases before a neutral fact finder, either a
judge or a jury. The judge or jury evaluates the evidence, applies the appropriate law to the
facts, and renders a judgment in favour of one of the parties. Following the decision, either
party ma y appeal the decision to a higher court. Appellate courts in a common-law system
may review only findings of law, not determinations of fact.

Thus, common law systems place great weight on court decisions, which are
considered ‘law’ with the same force of law as statutes. Common law courts have had the
authority to make law where no legislative statute exists, and statutes mean what courts
interpret them to mean.

2.2.2 Civil Law Systems

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Also referred to as the Roman-Germanic Law or Continental European System, this is a legal
system inspired by Roman and Germanic law and whose the primary feature is that laws are
written into a collection, codified, and not (as in common law) interpreted by judges .

The principle of civil law is to provide all citizens with an accessible and written collection of
the laws which apply to them and which judges must follow. It is the most widespread system
of law in the world, in force in various forms in about 150 countries.

Conceptually, it is the group of legal ideas and systems ultimately derived from the Code of
Justinian, but heavily overlaid by Germanic, ecclesiastical, feudal, and local practices as well
as doctrinal strains such as natural law, codification, and legislative positivism.

Materially, civil law proceeds from abstractions and formulated general principles and
distinguishes substantive rules from procedural rules. It holds legislation as the primary
source of law, and the court system is usually inquisitorial, unbound by precedent,
and composed of specially trained judicial officers with a limited authority to interpret law.

Juries separate from the judges are not used, although in some cases, volunteer lay judges
participate along with legally trained career judges.

2.2.3 Comparison between the Common Law System and the Civil Law Legal System

The difference between civil law and common law lies not just in the mere fact of
codification, but in the methodological approach to codes and statutes. In civil law countries,
legislation is seen as the primary source of law. By default, courts thus base their judgments
on the provisions of codes and statutes, from which solutions in particular cases are to be
derived. Courts thus have to reason extensively on the basis of general rules and principles of
the code, often drawing analogies from statutory provisions to fill lacunae and to achieve
coherence. By contrast, in the common law system, cases are the primary source of law,
while statutes are only seen as incursions into the common law and thus interpreted narrowly.

In civil law systems, statutes set the general principles of the law expressly by stating them;
the courts then make their own interpretations of those general principles afresh in each case
to arrive at conclusions about how those general principles translate into details.
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In common law systems, the approach is the opposite: the legislation sets the details, from
which the general principles emerge, much like a computer programme. The idea is that those
who are making the statutes, rather than the courts, should be the ones who have the power to
decide how the details work.

The civil law can thus be described as a top-down approach to principles, whereas
the common law can be described as a bottom up approach. Both systems ‘value’
principles equally, but arrive at them, and deal with the interface between principle and
detail, in very different ways.

Thus, common law and civil law systems may be distinguished in light of some key features.

Of course, it must be noted that the systems may not exhibit all of the features in
question, but the tendency is that most of the features will be seen to operate for a particular
legal system to fall under that category.

The areas of distinction include:

1) Common law systems trace their history to England, while civil law systems trace their
history to Roman law and the Napoleonic Code.

2) Regarding continuity of the legal system, whereas common law is evolutionary, civil law
systems are revolutionary. Civil laws are altered immediately the legislature enacts a
law whereas common law courts will continue to apply precedents making the changes slow
and progressive.

3) The major sources of law in the common law system are customs and practice while in
civil law legislative statutes stand as the primary source of law.

4) With regard to precedents, there is a very strong reliance to them in the common law
system. This is not the case with civil law system which does not rely on previous decisions,
but rather on codes.

5) The systems may also be distinguished on the basis of judicial role in law-making.
Whereas in common law it is active and creative, in the civil law system the judiciary only
plays a passive and technical role.
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6) The role of legal scholarship in the common law system is usually secondary and
peripheral, while in a civil law system the use of legal scholarship is extensive and
influential.

7) Judicial review of statutes and of executive actions is largely incorporated in common law
system which is not the case in the civil law world.

8) At common law, the major decision-making stage is the trial stage, while at civil law, the
critical stage in the process is at the investigation and examination period.

9) The trial format in common law is accusatorial and confrontational, while in civil law, it is
inquisitorial and collaborative.

10) The use of argument and debate during trial, extensive and fundamental in common law
systems. In civil law, the arguments are quite modest and restricted.

11) The style of legal reasoning in common law is inductive while in civil law, it is
usually deductive.

12) Trial emphasis in common law is usually on procedural correctness, whereas the civil law
system normally emphasises on factual certainty.

13) Evidentiary rules in common law is formal and restrictive. The exclusionary rule is
usually employed in common law. In civil law, usually all relevant evidence
considered.

14) With respect to the role of lawyers during trial, it is primary in common law system,
while in civil law system the lawyers only play a secondary role.

15) The common law lawyer’s function is to debate and oppose while in civil law, the
lawyer’s function is to advise and inform.

16) The judge’s role during trial is that of a referee/umpire in common law while in civil law,
he/she is a director/examiner.

17) The common law judges are usually political appointees from practicing lawyers and
other judicial ranks. Their status is of political VIPs. In civil law, judges are appointed by
merit advancement from judicial specialists. Their status is of mid-level civil servants.
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18) Some common law jurisdiction allow citizen’s participation in trial by employing
juries (grand & petit). In civil law, decisions are usually by members of judicial
panels.

19) While appeals in common law normally focus on procedural propriety, in civil law,
appeals focus both on procedural and substantive propriety.

20) The structure of the common law courts is usually unified while civil law systems have
diffused court structures (with multiple specialized courts).

Other Major Legal Systems

2.3.1 Socialist Legal Systems

Socialist system mostly denotes a general type of legal system used in the communist and
former communist states. It is based on the civil law system, with major modifications and
additions from Marxist-Leninist ideology.

There is controversy as to whether socialist law ever constituted a separate legal system or
not, but prior to the end of the Cold War, socialist law ranked among the major legal systems
of the world by virtue of the predominant ideology in the communist states. Socialist law is
similar to the civil law system but with the following characteristics:

(i) A greatly increased public law sector and decreased private law sector.

(ii) At the early stages of existence of each socialist state, the aim was the partial or total
expulsion of the former ruling classes from the public life (however, in all socialist states
this policy gradually changed into the policy of ‘one socialist nation without
classes’);

(iii) The system directly discouraged diversity of political views;

iv) The ruling Communist party members/leaders are usually subject to

prosecution through party committees in first place;

(v) Abolition of private property is usually considered as a primary goal of socialism, if

not its defining characteristic. Thus, near total collectivization and nationalization of
property is encouraged;
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(vi) There is low respect for individuals’ privacy and extensive control over private life
by the ruling party;

(vii) There is low respect for intellectual property. Such knowledge and culture is
considered a right for human kind and not a privilege as in the free market economies;

(viii) There are extensive social warrants of the state (the rights to a job, free education,
free healthcare, retirement at 60 for men and 55 for women, maternity leave, free
disability benefits and sick leave compensation, and subsidies to multi-children
families) in return for a high degree of social mobilization.

(ix) The judicial process lacks adversary character; public prosecution is

considered as ‘provider of justice.’

(x) While civil law systems have traditionally put great pains in defining the notion
of private property, how it may be acquired, transferred, or lost, socialist law
systems provide for most property to be owned by the state or by agricultural co-
operatives, and having special courts and laws for state enterprises.

(xi) Although the command economy approach of the communist states meant that
property could not be owned, the Soviet Union always had a Civil Code, courts that
interpreted this Civil Code, and a civil law approach to legal reasoning (thus, both legal
process and legal reasoning were largely analogous to the French or German civil code
system).

Legal systems in all socialist states preserved formal criteria of the Romano-Germanic civil
law; for this reason, law theorists in post-socialist states usually consider the Socialist law as
a particular case of the Romano-Germanic civil law.

Cases of development of common law into Socialist law are unknown because of
incompatibility of basic principles of these two systems (common law presumes influential
rule-making role of courts while courts in socialist states play a dependent role)

2.3.2 Religious Legal Systems

Religious law refers to the notion of a religious system or document being used as a legal
source. The main kinds of religious law are Sharia in Islam, Halakha in Judaism, and canon
law in some Christian groups.
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The methodologies used in religious laws greatly vary. The use of Jewish Halakha for public
law, for example, has a static and unalterable quality, precluding amendment through
legislative acts of government or development through judicial precedent. On the other hand,
it may be observed that Christian canon law is more similar to civil law in its use of civil
codes while Islamic Sharia law (and Fiqh jurisprudence) is usually based on legal precedent
and reasoning by analogy (Qiyas), and is thus considered similar to common law. During the
Islamic Golden Age, classical Islamic law may have had an influence on the development of
common law and several civil law institutions.

In some cases the religious edicts are intended purely as individual moral guidance. Canon
law, for example, is not a divine law, properly speaking, because it is not found in revelation.

Instead, it is seen as human law inspired by the word of God and applying the demands of
that revelation to the actual situation of the church. Canon law regulates the internal ordering
of the Roman Catholic Church, the Eastern Orthodox Church and the Anglican Communion.

Canon law is amended and adapted by the legislative authority of the church, such as councils
of bishops, single bishops for their respective sees, the Pope for the entire Catholic Church,
and the British Parliament for the Church of England.

In other cases religious laws are intended and may be used as the basis for a country's legal
system. The latter was particularly common during the middle Ages and today in countries
adopting the Islamic legal system where Sharia (Islamic law) and Fiqh (Islamic
jurisprudence) is the most widely used religious law and is one of the three most common
legal systems in the world alongside common law and civil law. It is the most protected
divine law, because, the majority of the rulings of Sharia law are based on the Qur'an and
Sunnah, while a small fraction of its rulings are based on the Ulema (jurists) who used the
methods of Ijma (consensus), Qiyas (analogical deduction), Ijtihad (research) and Urf
(common practice) to derive Fatwā (legal opinions). In Islamic systems, Ulema may be
required to qualify for an Ijazah (legal doctorate) at a Madrasah (school) before they are
able to issue Fatwā.

Sharia law governs a number of Islamic countries, including Saudi Arabia, Pakistan and Iran,
though most countries use Sharia law only as a supplement to national law. It can relate to all
aspects of civil law, including property rights, contracts or public law.

Plural and Hybrid Systems

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2.4.1 Plural Systems

Legal pluralism is the existence of multiple legal systems within one geographic area. Plural
legal systems are particularly prevalent in former colonies, where the law of a former colonial
authority may exist alongside more traditional legal systems. When these systems developed,
the idea was that certain issues (e.g., criminal sanctions) would be covered by colonial law,
while other issues (e.g., family and marriage) would be covered by traditional law. Over
time, these distinctions tended to break down and individuals would choose to bring their
legal claims under the system that they thought would offer them the best advantage.

Legal pluralism also occurs when different laws govern different groups within a country. For
example, in India, Kenya and Tanzania, there are special Islamic courts that address
concerns in Muslim communities by following Islamic law principles. Secular courts deal
with the issues of other communities.

It is important to note that modern Western legal systems can also be pluralistic. It is, thus,
misleading to discuss legal pluralism only in relation to non-Western legal systems.

Legal pluralism also exists to an extent in societies where the legal systems of the indigenous
population have been given some recognition.

2.4.2 Hybrid Systems

Hybrid systems arise where there is a mixture of notions form different legal systems
coexisting with each other at the same time. The most prominent example of a hybrid legal
system is the Indian legal system. India follows a mixture of civil, common law and
customary or religious law. Separate personal law codes apply to Muslims, Christians, and
Hindus. Decisions by the Supreme Court of India and High Courts are binding on the lower
courts. Further, most of the laws are statutory and it also has a constitution which signifies the
civil nature of law in India.

Hybrid legal systems are also found in South Africa and Greece where the systems are based
on a mixture of Civil law and common law. US law may also be viewed as hybrid legal
systems to the extent that there is a mixture of civil law, common and religious laws in the
system.
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Session 3

MATERIAL SOURCES OF LAW IN KENYA

Introduction

The Judicature Act and the Constitution supply a good basis for the determination of where
laws in Kenya sourced. The Judicature Act, Cap 8 is guides the courts in Kenya on the law to
apply. It provides that in section 3:

(1)The jurisdiction of the High Court, the Court of Appeal and of all subordinate courts
shall be exercised in conformity with: a) The Constitution;

b) Subject thereto, all other written laws, including the Acts of Parliament of the United
Kingdom cited in Part I of the Schedule to this Act, modified in accordance with Part II
of that Schedule;

c) subject thereto and 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 the 12th August, 1897, and the procedure and practice observed in
courts of justice in England at that date;

But the common law, doctrines of equity and statutes of general application shall apply
so far only as the circumstances of Kenya and its inhabitants permit and subject to such
qualifications as those circumstances may render necessary.

(2) The High Court, the Court of Appeal and all subordinate courts shall be guided by
African customary law in civil cases in which one or more of the parties is subject to it
or affected by it, so far as it is applicable and is not repugnant to justice and morality or
inconsistent with any written law, and shall decide all such cases according to
substantial justice without undue regard to technicalities of procedure and without
undue delay.

This section creates a hierarchy of law in the following order:

(i) The Constitution;

(ii) Kenyan Legislations and some English Acts;

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(iii) Common law, the doctrines of equity and the statutes of general application in force in
England on the 12th August, 1897; and

(iv) African Customary law

This section may be interpreted to closely relate to the new Constitution which may be seen
to also supply sources from which the law of Kenya would be tapped from the courts. The
Constitution identifies the sources of law to include:

(i) The Constitution (in article 2);

(ii) Legislation (article 94(5));

(iii) Customary law (art 2(4);

(iv) General rules of international law (art 2(5); and

(v) Treaties or conventions ratified by Kenya (art 2(6).

But the problem is that the provisions do not tally. Thus, the judicature Act may need to be
amended to accord with the new constitutional structure of laws e.g. as regards international
law.

The Constitution

The highest source of law in Kenya the Constitution. Under article 2 (comparable to section 3
of the repealed Constitution), it is provided that the Constitution is the supreme law of the
Republic and binds all persons and all State organs at both levels of government.

The Constitution provides that no person may claim or exercise State authority except as
authorised under the Constitution.

Thus in old English law, a writ of quo warranto (by what authority in Latin) would be issued
to challenge a wrongful exercise of authority. This writ is still in use in USA and in India.

In the United States, the Supreme Court described it in Johnson v. Manhattan Railway Co.
(1933) p. 502 as a writ “addressed to preventing a continued exercise of authority unlawfully
asserted,” brought by the state or federal government against any person alleged to “exercise
an office or authority without lawful right”.
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In India for example, in Anna Mathew v. N. Kannadasan (2008) a writ was filed under
Article 226 of the Constitution of India for the issuance of Writ of Quo Warranto against the
1st respondent requiring him to show his authority to hold the office of President of the Tamil
Nadu State Consumer Disputes Redressal Commission and to consequently declare his
appointment by the 2nd respondent illegal and unconstitutional.

Under article 2 of the 2010 Constitution, the validity or legality of the Constitution is not
subject to challenge by or before any court or other State organ. However, in a curious
ruling, the High Court in the case of Jesse Kamau & 25 others v Attorney General [2010]
eKLR held under the repealed Constitution of Kenya that:

The accused was sentenced to death as decreed by section 204 of the Penal Code. Their
appeal to the Court of Appeal against both that conviction and sentence was dismissed. Upon
further appeal, the Supreme Court found that section 204 of the Penal Code that
provided that “any person convicted of murder shall be sentenced to death”, was
unconstitutional. The Supreme Court held that the mandatory nature of the death sentence as
provided for under section 204 of the Penal Code deprived the Court of the use of judicial
discretion in a matter of life and death.

The Court stated that such law could only be regarded as harsh, unjust and unfair.
The mandatory nature of the provision deprived the Courts of their legitimate
jurisdiction to exercise discretion not to impose the death sentence in appropriate cases. The
Court went on to order that the judgment urgently be placed before the Speakers of the
National Assembly and the Senate…

In Hamdardda Wakhama vs. Union of India (AIR 1960 at 554) where the Court stated:

…when an enactment is impugned on the ground that it is ultra vires and

unconstitutional what has to be ascertained is the true character of the legislation and for
that purpose regard must be had to the enactment as a whole to its objects, purpose and true
intention and the scope and effect of its provisions or what they are directed against and
what they aim at.

Written Laws

3.3.1 Acts of the Kenyan Parliament

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Under article 94(1), the legislative authority of the Republic is derived from the people and,
at the national level, is vested in and exercised by Parliament.

Moreover, no person or body, other than Parliament, has the power to make law unless the
Constitution authorises it or under authority given under legislation (94(5)).

3.3.2 Delegated Legislation

An Act of Parliament, or legislation of a county, may confer on any State organ, State officer
or person the authority to make provision having the force of law in Kenya.

For this to be so, the Act has to expressly specify the purpose and objectives for which that
authority is conferred, the limits of the authority, the nature and scope of the law that may be
made, and the principles and standards applicable to the law made under the authority.

3.3.3 Acts of Foreign Legislative Bodies

a) English Legislation

Under Part I of the Schedule to the Judicature Act Cap 8 Laws of Kenya, the following
British Statutes are applicable in Kenya;

 Admiralty Offences (Colonial) Act of 1849;

 The Evidence Act (Sections 7 and 11 thereof)

 Foreign Tribunals Evidence Act of 1856

 Evidence by Commission Act of 1859

 British Law Ascertainment Act 1859

 Admiralty Offences (Colonial) Act of 1860

 Foreign Law Ascertainment Act of 1861

 Conveyancing (Scotland) Act of 1874 specifically S. 51 thereof

 Evidence by commission Act of 1885.

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Under Part II of Schedule to the Judicature Act the President shall replace the Governor and a
Magistrate holding a subordinate Court of the 1st Class shall replace a Magistrate of the
Justice of Peace.

The Judicature Act also identifies Statutes of General Application as at 12th August 1897 as
sources of law in Kenya

This is contained in Section 3 of the Interpretation and General Provisions Act Cap 2 of the
Laws of Kenya. The expression “Statutes of General Application” is not specifically defined
in the Judicature Act, Cap 2 or in any other piece of legislation. However, Kenya Courts
have over the years accepted several UK Statutes as statutes of general application
and applied them in determining certain cases.

Three basic criteria must be satisfied in order for a UK Act to be received and applied as a
statute of general application:

(i) It must have been enforced in the UK on the 12th day of August 1897;

(ii) It must have been applicable generally in the UK as at that date i.e. it must not have
been a statute applicable only to a section of the UK or only to a section of the
population;

(iii) The Statute must be suitable for the circumstances of Kenya and the inhabitants.

One Professor Allot in an article entitled “New Essays in African Law” has outlined a
number of factors to be considered before UK Legislation can qualify as a statute of
general application. These are:

(i) The statute must be a government Act of the English legislature as distinguished
from a local or private Act;

(ii) The statute must have been in force in England at the specified reception date;

(iii) The statute must be suitable for general application outside England;

(iv) The Courts of the particular country concerned must rule on it;

(v) When there is a local enactment which is inconsistent with the English statute then
the local legislation prevails.
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Some of the statutes of general application applied in Kenya include:

 Married Women’s Property Act of 1882 (see case of I v I: 1971 case reported in EA law
reports page 278);

 Infants Relief Act of 1874.

b) Indian Legislation

There are some pieces of Indian legislation which were imported into Kenya by the British
Colonial Authorities, for instance, the Indian Transfer of Properties Act (ITPA) was for a
long time used to provide substantive law under various procedural land legislation until it
was repealed by the comprehensive land legislation of 2012.

Common Law

Common-law courts base their decisions on prior judicial pronouncements rather than on
legislative enactments. Common-law judges rely on their predecessors' decisions of actual
controversies, rather than on abstract codes or texts, to guide them in applying the law.

Under the doctrine of Stare Decisis, common-law judges are obliged to adhere to previously
decided cases, or precedents, where the facts are substantially the same.

A court's decision is binding authority for similar cases decided by the same court or by
lower courts within the same jurisdiction. The decision is not binding on courts of higher
rank within that jurisdiction or in other jurisdictions, but it may be considered as
persuasive authority.

Because common-law decisions deal with everyday situations as they occur, social changes,
inventions, and discoveries make it necessary for judges sometimes to look outside reported
decisions for guidance in a case of first impression (previously undetermined legal issue).

The common-law system allows judges to look to other jurisdictions or to draw upon past or
present judicial experience for analogies to help in making a decision. This flexibility allows
common law to deal with changes that lead to unanticipated controversies. At the same time,
stare decisis provides certainty, uniformity, and predictability and makes for a stable legal
environment.

Doctrines of Equity
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Equity is the name given to the set of legal principles, in jurisdictions following the English
common law tradition that supplement strict rules of law where their application
would operate harshly.

Equity has an ordinary meaning and a technical meaning. In the ordinary sense, equity
means fairness, justice, morality, fair play, equality etc. In this sense, we are talking about
doing good or doing what is morally right. It is regarded as a body of rules that is an
appendage to the general rules of law.

The Constitution takes this into account, for example in article 10 on National Values when it
adopts the values of human dignity, equity, social justice, inclusiveness, equality, human
rights, non-discrimination and protection of the marginalised and protects the right to
equality and non-discrimination in article 27.

In article 159, it provides that in exercising judicial authority, the courts and tribunals shall
be guided by the following principles

(a) justice shall be done to all, irrespective of status;

(b) justice shall not be delayed.

In a legal sense, equity it is the branch of the law which, before the Judicature Act of 1873
came into force, was applied and administered by the Court of Chancery. Equity is
commonly said to ‘mitigate the rigor of common law,’ allowing courts to use their discretion
and apply justice in accordance with natural law. In practice, modern equity is limited by
substantive and procedural rules, and English legal writers tend to focus on technical aspects
of equity.

A historical criticism of equity as it developed was that it had no fixed rules of its own, with

the Lord Chancellor occasionally judging in the main according to his own conscience. The
rules of equity later lost much of their flexibility, and from the 17th century onwards equity
was rapidly consolidated into a system of precedents much like its common-law cousin.

During the colonial era, the British applied a dual system of law: in areas under “direct rule”
English law applied while in areas under “indirect rule” customary or traditional laws were
allowed to continue to apply to native populations under the supervision of the
British.
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English law applied in all areas to people of English descent and to Africans who “opted out”
of customary law. In addition, serious offenses against the state, or criminal offenses, were
generally dealt with under English law. The Common Law system also recognised unwritten
rules and norms as part of the law (as opposed to civil law systems that generally require law
to be written).

Against this historical backdrop, today, customary law is increasingly being treated as part of
the common law. The Constitutions of some countries actually recognise this. Sierra
Leone, for example, explicitly states that customary laws are part of the common law of
the country.

In Kenya, the Judicature Act recognises customary law as part of the Kenyan law. The
discretion of the court to apply customary law is subject to the proviso that customary law
cannot be applied where it is contrary to written law or is contrary to public policy or natural
justice.

For customary law to be applied, the following conditions should be met:

(i) One or more of the parties must be subject to it or affected by it,

(ii) It should not be inconsistent with any written law, and

(iii) It should not be repugnant to justice and morality.

But there are cases where statutes recognise the operations of customary law above
the express provisions of statutory law. The Law of Succession Act, Cap 160 for
example, provides in section 33 that:

[Notwithstanding the provisions of that part] the law applicable to the distribution on
intestacy of [some] categories of property ... shall be the law or custom applicable to the
deceased's community or tribe, as the case may be.

Now, under the Kenyan Constitution, article 11 has given more impetus to the operation of
customary law by recognising culture as the foundation of the nation and as the cumulative
civilization of the Kenyan people and nation and enjoins the State to promote all forms of
national and cultural expression.
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In Monica Jesang Katam v Jackson Chepkwony & Another [2011], Justice J.B. Ojwang’
(retired supreme court Judge but) then at the High Court affirmed the right of Inheritance in
woman to woman marriage as acceptable law in Kenya under our customs.

Monica Jesang had claimed the right of inheritance by affirming that she was a beneficiary of
the estate of Cherotich Kimong’ony Kibserea (deceased) by virtue of having been married to
the deceased in a woman to woman marriage under the Nandi tradition. The High Court at
Mombasa in deciding the case upheld customary law by observing that contemporary
social systems for instance, in the shape of current practices in the domain of family among
the Nandi were to be regarded as aspects of culture which would rightly claim protection
under Article 11 (1) of the Constitution of Kenya 2010. The Constitution under the Article
recognized culture as the foundation of the nation and as the cumulative civilization of the
Kenyan people and the nation.

However, it is provided in article 2 of the 2010 Constitution that customary law that
is inconsistent with this Constitution is void (art 2). Furthermore, Article 159 enjoins the
courts, in exercising judicial authority, to ensure that traditional dispute resolution
mechanisms shall not be used in a way that—

(i) Contravenes the Bill of Rights;

(ii) Is repugnant to justice and morality or results in outcomes that are repugnant to justice or
morality; or

(iii) Is inconsistent with this Constitution or any written law.

International Law

A source of law that is not mentioned in the Judicature Act is international law. However, the
Constitution provides in article 2 that the general rules of international law shall form part of
the law of Kenya. Moreover, any treaty or convention ratified by Kenya shall form part of the
law of Kenya under this Constitution, according to the Constitution.

A question that would arise in this regard is: at what hierarchical position does international
law stand in the hierarchy of law, considering that it is not included in the Judicature Act,
Cap 8? It may be possible to settle this through an amendment to that Act to take
19

into consideration this issue alongside the issue of the reception date in the Act that it might
seem to have been passed by the times today.

Three suggestions may be made with respect to the place of international law in the hierarchy
of law:

(i) Since international laws (especially treaties protecting human rights) deal with the same
things as the Constitution in the subject, international law should be given a position at the
apex with the Constitution so that any law made by the legislature that violates international
law would be unconstitutional;

(ii) Also stipulates for enforcement of principles created under it through diverse means,
including legislation by Parliament, international law should be viewed as one such means
intended to safeguard constitutional guarantees and should therefore be placed at the
second tier in the hierarchy alongside Acts of Parliament; and

(iii) Since international law has not been subjected to the same legislative rigours in their
adoption as national laws as it normally is the case with other municipal laws, it should be
viewed only as supplementing legislation by Parliament and therefore at a level below the
Acts of Parliament in the hierarchy of laws.

Any of this position may be taken depending on the legislative pattern that the country may
adopt to enforce international law.

Session 4

LEGISLATIVE LAW-MAKING

Introduction

Acts of parliament and other subsidiary legislation done by bodies to which parliament has
conferred the power to legislate are important sources of law.

Primary Legislation

An Act is a statute enacted as primary legislation by national or sub-national

legislative organs. In Kenya, under the 2010 Constitution, the counties have legislative
assemblies in the form of County Assemblies under the devolved system.
20

It is important to note that the word ‘statute’ is used to denote a formal written enactment of
a legislative authority. The word is usually used to distinguish between the law made by
legislative bodies from case law, decided by courts, and from regulations issued by
government agencies (as subsidiary legislation). Statutory law is also to be distinguished
from and is subordinate to constitutional law.

In Kenya, the Constitution divides the legislative competence between the national
legislature and the county legislature (the 4th schedule to the Constitution). Some of the areas
of legislative competence of the national and county legislative organs overlap including
agriculture, education, health etc.).

Statutes are of several kinds. They may be public or private; declaratory or

remedial; temporary or perpetual etc. A temporary statute is one which is limited in its
duration at the time of its enactment. It continues in force until the time of its limitation has
expired, unless sooner repealed. A perpetual statute is one for the continuance of which there
is no limited time, although it be not expressly declared to be so. If, however, a statute
which did not itself contain any limitation is to be governed by another which is
temporary only, the former will also be temporary and dependent upon the existence of
the latter . A statute made by Parliament must accord to the Constitution or else it will be
void to the extent of inconsistency. In Hassan Ali Joho v Suleiman Said Shabal, Suleiman
Shahbal had filed a petition in the High Court challenging the validity of the election of
Hassan Joho at the gubernatorial election for Mombasa County.

At the heart of the matter was the constitutionality of s. 76(1)(a) of the Elections Act vis-
à-vis Art.87(2) of the Constitution. Section 76(1)(a) stated that a petition to question the
validity of an election shall be filed within twenty eight days after the date of
publication of the results of the election in the Gazette. Art. 87(2) stated that
petitions concerning an election, other than a presidential election, shall be filed
within twenty-eight days after the declaration of the election results by the IEBC.
Defining the term ‘declaration’, the Supreme Court declared the provision of s. 76(1)(a) of
the Elections Act inconsistent with the provisions of Art. 87(2) of the Constitution and
thus pursuant to Art. 2(4), void to the extent of the inconsistency.

In the SK Macharia Case,8 an application for leave to appeal against the judgement of the
Court of Appeal where the Appeal judge had been removed through the vetting of
the judiciary post the 2010 Constitution, pursuant to section 14 of the Supreme Court Act, the
21

Supreme Court declared section 14 of the Act unconstitutional insofar as it purported

to confer “special jurisdiction” upon the Supreme Court contrary to the express terms of the
Constitution.

The Process of Legislation/Law Making Process

A draft Act of Parliament is known as a Bill. In territories with a Westminster system, most
Bills that have any possibility of becoming law are introduced into Parliament by the
government. In the UK, this will usually happen following the publication of a ‘white paper’,
setting out the issues and the way in which the proposed new law is intended to deal with
them.

A Bill may also be introduced into Parliament without formal government backing; this is
known as a ‘private member's Bill.’

In territories with a multi-cameral parliament, most Bills may be first introduced in

any chamber. However, certain types of legislation are required, either by
constitutional convention or by law, to be introduced into a specific chamber. For example,
bills imposing a tax, or involving public expenditure, are introduced into the National
Assembly in Kenya (see articles 109 and 114), or into the House of Commons in the
United Kingdom by convention. Conversely, bills proposed by the Law Commission
and consolidation bills traditionally start in the House of Lords in the UK.

In Kenya, a Bill not concerning county government is considered only in the National
Assembly while a Bill concerning county government may originate in the National
Assembly or the Senate.

Once introduced, a bill must go through a number of stages before it can become law. In
theory, this allows the bill's provisions to be debated in detail, and for amendments to
the original bill to also be introduced, debated, and agreed to.

In bicameral parliaments, a bill that has been approved by the chamber into which it was
introduced is ‘send’ to the other chamber. Broadly speaking, each chamber must separately
agree to the same version of the bill. Finally, the approved bill receives assent; in
most territories this is merely a formality, and is often a function exercised by the head of
state.

Standing orders also provide for the process of legislation. Usually, the Bill goes through:
22

4.3.1 First reading

The first reading is a formal process that involves no debate.

4.3.2 Second reading

The debate on general principles of the Bill is done.

4.3.3 Committee Stage

Bills usually go through House Committees or to a Committee of the Whole House where the
Bill goes through a detailed line by line examination. Amendments are usually considered
here and public opinion is accepted. Debate on amendments is unrestricted.

4.3.4 Report Stage

After the end of Committee Stage the committee tables its report before the House. At this
stage, there are further chances to amend the Bills by members through a vote. For long and
complex Bills, this may be spread over several days.

4.3.5 Third Reading

Bill is then read and passed or opposed by the House.

4.3.6 Presidential Assent

In Kenya, A Bill passed by Parliament has to get presidential assent to become a law. Under
the Constitution, a Bill that has been passed by Parliament and assented to by the President
shall be published in the Gazette as an Act of Parliament within 7 days after assent (art 116).

An Act of Parliament comes into force on the 14th day after its publication in the Gazette,
unless the Act stipulates a different date at which it will come into force.

An Act of Parliament that confers a direct pecuniary interest on members of Parliament shall
not come into force until after the next general election of members of Parliament.

Delegated Legislation/Subsidiary Legislation/Indirect Legislation/Statutory instruments

An Act of Parliament, or legislation of a county, may confer on any State organ, State officer
or person the authority to make provision having the force of law in Kenya.
23

For this to be so, the Act has to expressly specify the purpose and objectives for which that
authority is conferred, the limits of the authority, the nature and scope of the law that may be
made, and the principles and standards applicable to the law made under the authority.

4.4.1 Why is it necessary to have controls over delegated legislation?

Delegated legislation is made by non-elected bodies away from democratically elected

politicians (parliament), as a result many people have the power to pass delegated legislation,
which provides a necessity for control, as without controls bodies would pass outrageous
unreasonable legislation which was attempted in the past. In Strictland v. Hayes Borough
Council (1986), a bylaw prohibiting the singing or reciting of any obscene language
generally, was held to be unreasonable and as a result the passing of this delegated legislation
was rejected.

It is essential to control the exercise of delegated legislative power in order to avoid

authorities abusing their powers (R v Secretary of State for Education and Employment , ex
parte National Union of Teachers (2000) and Commissioners of Custom and Excise v Cure
and Deely Ltd (1962)).

Another issue which occurs which makes controls over delegated legislation vital is sub-
legislation, which is where law making is handed down another level to people other than
those who were given the original power to do so, to implement important policies. Creating
criticism that our law is made by civil servants (who may know hardly anything about the
law) and just rubber stamped by the Minister of that apartment, this requires law passed by
these civil servants to be checked by the scrutiny committee of parliament or the courts.

Moreover, delegated legislation can share the same issues as Acts of Parliament such
as obscure wording that can lead to difficulty in understanding the law, which again makes
controls necessary as parliament or the courts can stop unclear legislation, which will affect
the lives of hundreds of people from passing.

4.4.2 Advantages of Delegated Legislation

(i) Parliament does not have the time to legislate on all issues;

(ii) They are speedy to enact and are therefore suitable for emergency intervention;
24

(iii) They are flexible or less rigid than Acts of Parliament and therefore they are easy to
amend or appeal;

(iv) Parliament will not usually have the requisite technical capacity.

4.4.3 Disadvantages of delegated legislation

(i) Lack of adequate parliamentary control;

(ii) Lack of adequate Judicial control;

(iii) They are undemocratic as they are not made by democratically elected persons;

(iv) Too much delegated legislation contributes to uncertainty in the law;

(v) There is the danger of sub-delegation.

4.4.4 The Concept of Ultra Vires in the Exercise of Delegated Powers

With relation to delegated legislation, there are issues of ultra vires which have to be
appreciated. It may be substantive or procedural ultra vires exercise of delegated powers.

Ultra vires is a Latin phrase meaning literally "beyond the powers", although its standard
legal translation and substitute is "beyond power".

a) Substantive ultra vires - the authority making the delegated legislation exceeds the
powers granted by parliament.

b) Procedural ultra vires - where the authority making the delegated legislation contravenes
any mandatory procedure set out in the parent statute.

Ultra vires delegated legislation will be amenable for quashing by courts of law. The doctrine
of ultra vires gives courts considerable powers of oversight over decision-making. The range
and variety of bodies amenable to the doctrine is large. Ministers, or any public body with
statutory powers, may be included. The doctrine also applies to companies and corporations
that are amenable to the remedies of declaration or injunction.

A local authority that enters an agreement or contract that is outside its statutory powers is
said to be acting ultra vires. In Hazel v. Hammersmith [1991] 1 All ER 545, the House of
Lords held that various speculative investments undertaken by local authorities lacked
25

express statutory authorization and were void with severe consequences for those who had
invested in local authority activities declared illegal by the courts.

The grounds for claiming ultra vires range from abuse of power, acting unreasonably
(Padfield v. Minister of Agriculture, Fisheries and Food [1968] AC 997), or acting not in
accordance with the rules of natural justice.

Ultra vires is a formidable doctrine for the courts to intervene and challenge the legality of
decisions. Ultra vires may result in significant consequences for the body exercising legal
powers. In many cases the decision that is ultra vires may be said, in law, never to have taken
place, with often severe consequences from such a finding on the parties to any agreement.

In Kaka Travellers Cooperative and Savings and Credit Society v. Nairobi City Council, the
High Court held that the levying of parking charges by the respondent without the
installation of parking metres as required by the Traffic Act was ultra vires the Act. Justice
Korir Weldon faulted the city council for arbitrarily increasing parking fees without
following its own by-laws. The Court held that:

“The Traffic Act which donated power to the local authorities to impose parking charges
provided that the said parking charges should be imposed by way of by-laws made in
accordance with the Local Government Act.”

Under the Traffic Act, parking meters was required to assist calculate the charges to
be levied.

Session 5

STRUCTURE AND JURISDICTION OF COURT IN KENYA

Introduction

Structure of the court system refers to the hierarchical arrangement of the court from the
lowest to the highest one. Composition of the court on the other hand refers to the presiding
judicial officer(s) that is the Magistrates and the Judges.
26

Kenya has a court system that operates at different levels. Jurisdiction of a court describes
the kind of cases that a particular court is empowered to hear and determine.

Superior Courts/Courts of Record in Kenya

5.2.1 The Supreme Court

The court is established under article 163 and the Supreme Court Act (No. 7 of 2011). The
Court is headed by Chief Justice, who is the president of the court and deputised by
the Deputy Chief Justice. The number of Judges of the Supreme Court is 7.

The Court’s jurisdiction includes:

(i) Exclusive original jurisdiction to hear and determine disputes relating to the
elections to the office of President; and

(ii) Appellate jurisdiction to hear and determine appeals from the Court of Appeal; and
any other court or tribunal as prescribed by national legislation.

(iii) Appeals from the Court of Appeal lie to the Supreme Court - For cases
involving the interpretation or application of the Constitution at the Court of
Appeal an appeal lies as of right to the Supreme Court.
In other cases where the Supreme Court or the Court of Appeal certifies that a
matter of general public importance is involved, an appeal will lie to the
Supreme Court.

(iv) The Supreme Court may give an advisory opinion at the request of the national
government, any State organ, or any county government with respect to any matter
concerning county government.

In Re the Matter of Commissioner for the Implementation of the Constitution

(Application No. 1 of 2011, [2011] eKLR), the Supreme Court affirmed its jurisdiction to hear
matters related to the date of the first elections under the 2010 Constitution but referred the
case to the High Court at the first instance since it was also seized with an appellate
jurisdiction were the matter to proceed beyond the High Court and Court of Appeal.

All courts, other than the Supreme Court, are bound by the decisions of the Supreme
Court.
27

In Peter Oduor Ngoge v Hon. Francis Ole Kaparo and 5 Others, the issue was whether the
Supreme Court could entertain an application where the Court of Appeal has either not
determined such motion by the petitioner for leave under s.19 of the Supreme Court Act,
2011, or, has entertained such an application but declined to grant leave; and whether an
ordinary subject of leave-to-appeal can trans-mutate to a meritorious theme involving the
interpretation or application of the Constitution. It was held that the appellate jurisdiction of
the Supreme Court is defined clearly enough under Article 163 of the Constitution, and s.19
of the Supreme Court Act and the petitioner’s case which had been brought without the leave
of the Court of Appeal was outside the jurisdiction of the Supreme Court. According to the
Court, the petitioner in this case had not rationalized the transmutation of the issue from an
ordinary subject of leave-to-appeal, to a meritorious theme involving the interpretation or
application of the Constitution – such that it becomes, as of right, a matter falling within the
appellate jurisdiction of the Supreme Court.

The Court further held that, in the interpretation of any law touching on the Supreme Court’s
appellate jurisdiction, the guiding principle is to be that the chain of Courts in the
Constitutional set-up, running up to the Court of Appeal, have the professional competence,
and proper safety designs, to resolve all matters turning on the technical complexity of the
law; and only cardinal issues of law or of jurisprudential moment, will deserve the further
input of the Supreme Court.

In the SK Macharia Case, an application for leave to appeal against the judgement of the
Court of Appeal where the Appeal judge had been removed through the vetting of
the judiciary post the 2010 Constitution, pursuant to section 14 of the Supreme Court Act, the
Supreme Court declared section 14 of the Act unconstitutional insofar as it purported
to confer “special jurisdiction” upon the Supreme Court contrary to the express terms of the
Constitution. Recognizing the good intention of Parliament, the Court nevertheless found
that where the constitution exhaustively provides for the jurisdiction of a court of law, the
court must operate within the constitutional limit. It cannot expand its jurisdiction through
judicial craft or innovation. Nor can Parliament confer jurisdiction upon a court of law
beyond the scope defined by the Constitution.

5.2.2 The Court of Appeal

28

This court is established under article 164. It consists of not fewer than twelve judges. The
head of the Court of Appeal is the President of the Court elected by the judges of the Court of
Appeal from among themselves.

The Court’s jurisdiction is to hear appeals from the High Court; and any other court
or tribunal as prescribed by an Act of Parliament. The decisions of the Court are binding
upon the High Court and other subordinate Courts.

Under the repealed Constitution, the Court of Appeal was the Highest Court of the Land (s.
64). This was created by a Constitutional amendment in 1977 after the collapse of the East
African Community. Before that, the East African Court of Appeal which was an organ of
the first East African Community was the highest appellate Court for the three East
African Countries of Kenya, Uganda and Tanzania.

5.2.3 The High Court

Under the repealed Constitution, the High Court was established under Section 60 as
a superior court of record and which had unlimited original jurisdiction in criminal and civil
matters and such other jurisdiction and powers as may be conferred on it by the Constitution
or any other law.

The 2010 Constitution, established this court in article 165. The head of the Court is the
Principal Judge of the High Court, who is elected by the judges of the High Court
from among themselves.

In terms of jurisdiction, the High Court has:

(i) Unlimited original jurisdiction in criminal and civil matters;

(ii) Jurisdiction to determine the question whether a right or fundamental freedom in

the Bill of Rights has been denied, violated, infringed or threatened;

(iii) Jurisdiction to hear an appeal from a decision of a tribunal appointed under this
Constitution to consider the removal of a person from office (other than a tribunal
appointed to remove the President under Article 144);

(iv) Jurisdiction to hear any question respecting the interpretation of this Constitution
including the determination of:
29

a. The question whether any law is inconsistent with or in contravention of the

Constitution;

b. The question whether anything said to be done under the authority of the
Constitution or of any law is inconsistent with, or in contravention of, the
Constitution;

c. Any matter relating to constitutional powers of State organs in respect of county

governments and any matter relating to the constitutional relationship between the levels of
government; and

d. A question relating to conflict of laws between the county law and the national laws under
Article 191; and

(v) Supervisory jurisdiction over the subordinate courts and over any person,
body or authority exercising a judicial or quasi-judicial function, but not over a
superior court.

(vi) Any other jurisdiction, original or appellate, conferred on it by legislation.

The High Court does not have jurisdiction in respect of:

(i) Matters reserved for the exclusive jurisdiction of the Supreme Court; or

(ii) Matters falling within the jurisdiction of :

a) Industrial Court established under art 162(2) of the Constitution and Act No 20 of
2011; and

b) Environment and Land Court established under art 162(2) of the Constitution Act
No 19 of 2011.

In practice only those cases in respect of which the subordinate courts have no jurisdiction
will be heard in the High Court. As a superior court of record decisions of the High Court are
binding on subordinate courts. Thus, the High Court hears ordinary civil cases where the
value of the subject matter exceeds the pecuniary jurisdiction the Resident Magistrate courts.

In criminal cases the High Court only hears cases relating to offences of murder and
treason.
30

In addition to the ordinary civil and criminal jurisdiction of the High Court there are certain
matters which can only be heard by the High Court exclusively.

These include:

(i) Interpretation of the Constitution art 165(3)(d).

(ii) Cases involving enforcement of fundamental rights and freedoms of the individual
which are set out in Chapter 4 of the Constitution (art 165(3)(b).

(iii) Election Petitions involving Parliamentary election (for presidential, the exclusive
jurisdiction is with the Supreme Court).

(iv) Judicial Review - Under Order 53 of the Civil Procedure Rules, the High Court has
powers of Judicial Review of administrative action and can grant orders of
Certiorari, Mandamus and Prohibition.

(v) Supervisory Jurisdiction: The High Court exercises supervisory jurisdiction over
subordinate courts and in this regard can transfer cases from one subordinate court to
another if it deems it fit.

(vi) Admiralty jurisdiction - Section 4 of the Judicature Act provides that the High
Court shall be a court of admiralty i.e. the court shall entertain cases of High
Seas, Territorial Waters, Lakes and other navigable inland waters.

vii) Appellate Jurisdiction - The High Court has appellate jurisdiction i.e. appeals from
all subordinate courts and tribunals exercising quasi-judicial powers can properly be
entertained by the High Court.

(viii) Winding up of Companies - This can only be filed at the High Court.

(ix) Probate Jurisdiction - under the Laws of Succession

(x) Bankruptcy petitions

(xi) Matters dealing with Intellectual property.

With regard to the composition of the High Court, ordinarily, the High Court is duly
constituted by a Judge sitting alone. However there are instances where two or more High
Court Judges may sit together to hear certain types of cases.
31

Issues raising substantial question of law are normally to be heard by an uneven number of
judges, being not less than three. For example, in matters raising substantive constitutional
question the Chief Justice is required to appoint at least three High Court judges to hear the
case.

Previously, section 7 of the Judicature Act Cap 8 provided a limit of 70 judges. This has now
been increased to 150 under the new Constitution to tackle the backlog in the court.

All appeals from the High Court lie to the Court of Appeal.

5.2.4 Specialized Courts

Under article 159(1), judicial authority is exercisable by courts and tribunals established by
or under the Constitution. Some specialized courts have thus been established by the
Constitution and are ranked alongside the High Court. These include:

1) Employment and Labour Relations Court

Before 2010, the Industrial Court was established under the Trade Disputes Act Cap 234.
As noted above, it now ranks at the same level as the High. Its composition included a judge
and two other members appointed from a panel constituted by the Minister for Labour. The
judge of the Industrial Court was appointed by the President for a renewable term of 5
years and the requisite qualifications were the same as those for other judges.

It’s jurisdiction was to hear industrial disputes that occurred between employer and
employees, federation of employers and employee unions etc. These related to matters of
employment, terms of employment, dismissal redundancy collective bargaining agreement
etc. No Appeal lay from an award of the Industrial Court.

The Constitution of 2010 has now created the Employment and Labour Relations Court, art
162, which is at the same status as the High Court to determine industrial disputes.

In United States International University (USIU) v Attorney General & 2

others,11 the question was whether the Industrial Court is competent to interpret the
constitution and enforce matters relating to breach of fundamental rights and freedoms
and, whether employment and labour relations matters which raise constitutional issues filed
in the High Court prior to establishment of the Industrial Court should be handled by the
High Court. It was held that:
32

(i) The Industrial Court Act 2011 is silent on the jurisdiction of Industrial Court to
interpret the Constitution or to enforce fundamental rights and freedoms. Likewise Art
165 of the Constitution is silent whether the courts of the status of the High Court have
jurisdiction to interpret the constitution, and enforce fundamental rights and freedoms
under the Bill of rights.

(ii) The Industrial Court as constituted under the Industrial Court Act, 2011 as a court
with the status of the High Court, is competent to interpret the Constitution and
enforce matters relating to breach of fundamental rights and freedoms, in matters
arising from disputes falling within the provisions of section 12 of the Industrial Court
Act, 2011.

(iii) The Industrial Court, having been established to deal with employment and
labour matters. It follows that all employment and labour relations matters pending in
the High Court, shall be heard by the Industrial Court which is a court of the status of
the High Court. The High Court therefore lacks jurisdiction to deal with matters of
employment and labour matters whether filed in the High Court before or after the
establishment of the Industrial Court. Both matters were thus transferred to the
Industrial Court for hearing and disposal.

In Kenyatta University v. Industrial Court of Kenya & another (Misc. Civil Appl. No.
430 of 2007 [2012]eKLR, the question before the High Court was whether the High Court
had jurisdiction to entertain an application pertaining to issues of employment
and labour relations and to supervise the Industrial court. It was held that the
jurisdiction of the High Court vis-à-vis the Industrial Court has now been settled by
Article 165 (5) of the Constitution which provide that the High Court shall not have
jurisdiction to determine matters pertaining to employment and labour relations. Jurisdiction
over such matters is now vested by Article 162(2) in the Industrial Court, a court with the
status of the High Court established under the provisions of the Industrial Court Act, 2011.

However, it was noted that neither the Constitution nor the Industrial Court Act operates
retrospectively and the High Court had jurisdiction to supervise the Industrial Court as it
existed in February, 2007 when the decision impugned in this application was made. Thus,
had it found that the Industrial Court acted in excess of its jurisdiction, then the High Court
would have had the jurisdiction to quash the decision if it was reached ultra vires the
jurisdiction of the respondent.
33

5.2.4.1 Environment and Land Court

Environment and Land Court is a relatively new court established by the Environment and
Land Court Act (No 19 of 2011) pursuant to the Constitution of 2010. The court is at the
same level as the High Court as per art 162(2)(a) & (b)).

Subordinate Courts

The 2010 Constitution does not say much else about the Subordinate Courts except to grant
Parliament the powers to define the functions, roles and jurisdiction of these courts.
Article 169 states:

(1) The subordinate courts are:

(a) The Magistrates courts;

(b) The Kadhis’ courts;

(c) The Courts Martial; and

(d) Any other court or local tribunal as may be established by an Act of Parliament,
other than the courts established as required by Article 162 (2).

(2) Parliament shall enact legislation conferring jurisdiction, functions and powers on
the courts established under clause (1).

5.3.1 Resident Magistrates Courts

These are established under Section 3 of Magistrates' Courts Act Cap 10. A
Resident Magistrate Court is presided by a Resident Magistrate, Senior Resident Magistrate,
Principal Magistrate, Senor Principal Magistrate or even the Chief Magistrate.

The territorial jurisdiction of an RM is country wide (Section 3(2) of Cap 10). However,
under the Civil Procedure Act particularly Sections 11 to 18 the place for suing with regard
to civil proceedings is specifically provided for. At present, all Resident Magistrate Courts
have only original jurisdiction in both civil and criminal matters.

In criminal cases Resident Magistrates Courts have power to hear and determine all cases
involving offences under any Kenyan Law except those exclusively triable by the
High Court.
34

In Civil cases the current jurisdiction of Resident Magistrate Courts is set out in the in the
Magistrates’ Courts Act cap 10 (as amended from time to time). In Justus Kyalo Mutunga v
Labh Sing Harnam Civil Suit 338 of 2012 High Court at Nairobi [2012] eKLR, the issues
were about the application to transfer a suit for damages arising from a road accident, after
the suit had mistakenly been filed in a subordinate court outside the territorial jurisdiction of
where the accident had occurred. According to the respondent, the suit could not legitimately
be transferred from the Court that had no jurisdiction to one of competent jurisdiction. It was
Held, the Civil Procedure Act is not the instrument that confers jurisdiction upon the
subordinate courts since the jurisdiction of the subordinate courts is governed by Magistrate’s
Courts Act. Section 3(2) of the former Act expressly states that the Resident Magistrate’s
Court shall have jurisdiction throughout Kenya. Per Ringera J in Mohamed Sitaban
v George Mwangi Karoki Civil Application No. 13 of 2002:

Under section 3(2) of the Magistrate’s Court Act, a court of the resident magistrate has
jurisdiction throughout Kenya. Such a court is not subject to the local territorial
jurisdiction contemplated by section 15 of the Civil Procedure Act which applied only to
courts lower than the Resident Magistrate’s Court

The Magistrates Court Act was enacted in 1967 long after the Civil Procedure Act. The
Legislature was therefore aware of the provisions of section 15 of the Civil Procedure Act
and where two provisions in different statutes conflict, the provision in the latter statute is
deemed to amend the earlier provision.

There may be sound administrative reasons for filing suits in administrative Districts in
which the defendant resides but those reasons cannot oust a statutory jurisdiction. The rule
that a suit filed in a court without jurisdiction is a nullity and cannot be transferred is
inapplicable in such cases.

Subsequent to the 2013 General Elections, the Magistrate Courts were engaged in hearing
electoral petitions for County Assembly seats. The Chief Justice has also been granted by the
Industrial Court Act, 2011 the authority to appoint some Magistrates Courts to hear
and determine employment and labour relations (industrial) disputes. Obviously, appeals
from these courts would then fall back on the Industrial Court.

5.3.2 District Magistrates Courts

35

These are established under Section 7 of the Magistrates Courts Act Cap 10. There are 3
classes of DM’s courts: DM3; DM2; DM1. District Magistrate 3 has since been phased out
administratively although the Act has not yet been amended. However Criminal Law
Amendment Act No. 5 of 2003 has expressly abolished DM courts with regard to
criminal proceedings.

Each DM Court is presided over by one Magistrate. The territorial jurisdiction of a DM’s
court is limited to the administrative district for which the court is established. However the
Chief Justice may designate two or more districts for purposes of District Magistrates Courts.

These courts only have original jurisdiction as opposed to appellate jurisdiction i.e. the power
to hear cases at first instance only. They have no appellate jurisdiction whatsoever.

Under Section 9 of the Magistrates Court Act the civil jurisdiction includes:

(i) Where the proceedings concern a claim under customary law;

(ii) Civil cases where the value of the subject matter in dispute does not exceed the
amounts set for each court.

5.3.3 Kadhi Courts

Kadhi Courts are established under art 170 of the Constitution of 2010 as subordinate courts.

The jurisdiction of a Kadhi court is limited to the determination of questions of Muslim law
relating to personal status, marriage, divorce or inheritance in proceedings in which all
the parties profess the Muslim religion and submit to the jurisdiction of the Kadhi’s courts.

Tribunals are usually established by Acts of Parliament.

5.3.4 Courts Martial

Under part VIII of the Armed Forces Act, cap 199, Parliament and the Chief of Defence
Forces have the power to establish a court martial in Kenya.

Courts martial have power to try persons for any offence and to mete punishment. A
court martial is convened to deal with a specific matter. There is, therefore, no permanent
structure.
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People to be tried by courts martial include members of the Army, Air Force, the Navy and
their reserves. However, the court does not apply to the police force. The courts martial
exercises limited criminal jurisdiction, under only one type of law —military law.

Jurisdiction is penal or disciplinary and designed to ensure discipline in the Armed Forces.
The cases tried include insubordination, cowardice, fraud, theft, aiding an enemy and
neglect of duty. Appeals from the decisions of the courts martial lie with the High Court,
which must grant leave before the appeal is heard.

5.3.5 Children’s Court

Part VI of the Children Act (No 8 of 2001) establishes the Children’s Courts. As a
subordinate courts of any class (under the First Schedule to the Criminal Procedure Code).

The Act empowers the Chief Justice may, by notice in the Gazette, appoint a magistrate to
preside over cases involving children in respect of any area of the country.

The Jurisdiction of the court includes:

(i) Conducting civil proceedings on matters set out under the Act;

(ii) Hearing any charge against a child, other than a charge of murder or a charge in
which the child is charged together with a person or persons of or above the age of
eighteen years;-

(iii) Hearing a charge against any person accused of an offence under the Act;

(iv) Exercising any other jurisdiction conferred by this or any other written law.

Other Tribunals and Quasi-Judicial Bodies

 Business Premises Rent Tribunal - was established under the Landlord and Tenants (Shops,
Hotels and Catering Establishments) Act Cap 301 Laws of Kenya. Landlords and tenants act
cap 301

 Rent Tribunal – Was established under the Rent Restriction Act Cap 296 Laws of Kenya;
Rent restriction act
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 The Cooperative Tribunal - established under Section 77 of the Cooperative Societies

Act; Cooperative societies act

 Licensing Boards - established under myriad Acts;

 Land Disputes Tribunal – now abolished was established under the Land Disputes
Tribunals Act of 1990.

Jurisdictional Question

5.5.1 Original Jurisdiction of Courts

The Supreme Court, the High Court and the Subordinate courts have this Jurisdiction. This is
not a jurisdiction of the Court of Appeal.

5.5.2 Appellate Jurisdiction

Appeals are not as a matter of right but are possible under provisions of statutes. In the case
of human rights, the Constitution grants the right to appeal.

In Lawrence Nduttu & 6000 Others v. Kenya Breweries Ltd & another,12 the Supreme
Court was asked to determine whether the mere allegation of a violation of human
rights by a litigant in his/her pleadings give rise to an automatic right to access the Supreme
Court on appeal and whether the Court required to assume "supervisory appellate
jurisdiction" and inquire into the matter. The court held that:

(1) Only two types of appeals lie to the Supreme Court from the Court of Appeal.

a. The first type of appeal lies as of right if it is from a case involving the
interpretation or application of the Constitution. In such a case, no prior leave is
required from this Court or Court of Appeal

b. The second type of appeal lies to the Supreme Court not as of right but only if it has
been certified as involving a matter of general public importance. It is the certification
by either Court which constitutes leave. This means that where a party wishes to
invoke the appellate jurisdiction of the Court on other than that the case is one
which involves the interpretation or application of the Constitution, then such intending
appellant must convince the Court that the case is one involving a matter of general
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public importance. If the Court of Appeal is convinced that such is the case and the
certification is affirmed by the Supreme Court, then the intending appellant may
proceed and file the substantive appeal. The question as to what constitutes "a matter of
general public importance" is one that is bound to be addressed by the Supreme
Court in the foreseeable future as litigants seek certification or leave to lodge appeals on
that basis.

5.5.3 Special Jurisdiction

It has been held by the Supreme Court in Samuel Kamau Macharia and another v. Kenya
Commercial Bank Limited and 2 others, Application No. 2 of 2011(regarding the
Supreme Court Act conferment of jurisdiction to the Supreme Court to review the decisions
of judges removed through vetting) that Section 14 of the Act was unconstitutional
insofar as it purported to confer “special jurisdiction” upon the Supreme Court, contrary to
the express terms of the Constitution. Although Parliament had good intentions in
providing for the “extra” jurisdiction for the Supreme Court, as embodied in Section 14 of
the Supreme Court Act, ought to have been anchored under Article 163(4) of the
Constitution, or under Section 23 of the Sixth Schedule on “Transitional Provisions”.

Judicial Review and the Writ Jurisdiction of the Superior Courts

The main method through which the court will ensure that the Executive does not abuse its
powers is through judicial review over executive action. At common law, actions or cases
were commenced by a writ obtained from the royal office, the chancery. Every complaint had
a separate writ. The writ was a document which stated the nature of the complaint and
commanded the sheriff of the country where the defendant resided to ensure that the
defendant attended court on a specified date.

Some of the writs that developed in common law include:

(i) Habeas corpus - This is where the court orders that a person who has been detained/
arrested without legal justification should be released

(ii) Certiorari - where lower courts are directed to produce the record of its proceedings

(iii) Prohibition - orders from high court to lower courts preventing them from hearing or
continuing to hear a matter where in is beyond the jurisdiction of that court or it is in
violation of the rules of natural justice.
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(iv) Mandamus - where order issued on person or body commands them to perform a certain
duty.

In Centre for Rights Education & Awareness (Crew) & others v. The Attorney General
consolidated with Patrick Njuguna & another v the Attorney General & another,13
the constitutionality of Presidential appointment of County Commissioners under the
new Constitution was challenged. It was held:

In applying Article 129, 131, 132 (2), 2, 3, 10 ,20 , the 47 County Commissioners appointed
by the President in which only 10 out of 47 were women did not meet the constitutional
requirements at Article 27 (8) and violated the non-discrimination provisions of Article
27.

In referring to the principle of progressive realization the interpretation in the case of Milka
Adhiambo Otieno & Another -v- The Attorney General & Others, Kisumu High
Court Petition No. 44 of 2011 was upheld. It went further with the view that the phrase
‘progressive realization’ is applied to those circumstances where an allocation of
limited resources is required.

The appointments failed the test of constitutionality by disregarding the national values and
principles set out at Article 10(b) and the principle contained in Article 27(8) of the
Constitution.

With regard to public appointments, it is critical to have public participation and consultation.
The publication of the Gazette Notices presented a fait accompli to the country and thus did
not respect the values and principles of the Constitution. Section 23 and 24 of the former
Constitution, were not saved by the Transitional Provisions contained in Schedule 6 of the
Constitution. Consequently, the President could not make any appointments under the former
constitution.

Session 6

THE RULE OF LAW, CONSTITUTIONALISM, SEPARATION OF POWERS AND

CHECKS AND BALANCES AS BASELINES FOR THE KENYAN LEGAL SYSTEM