INTRODUCTION TO LAW
Nature, purpose and classification of law.
Give a clear definition of the term law and identify its main features.
Law is ambiguous because it does not restrict its meaning to any particular matter. Its
various definitions shall cover at least one of the following:
a) Laws of physical science e.g. the law of gravity.
b) Laws of social science e.g. the law of demand and supply
c) Laws for morality (moral law) i.e. the rules which regulate the acceptable human
behavior in a particular community e.g. respect for the elderly.
d) Laws of religion such as those given to man by the Almighty through his prophets
(the Torah).
e) Laws of state (state law)- laws made and enforced by machinery of government
(machinery of government comprises for the Legislature, the Executive and
Judiciary) therefore this particular subject does only concern state law.
Definition of state l aw
Among the various definitions of state laws, the following are easier to understand.
1 . Woodrow Wil son: “That portion of established thoughts and habits which has
gained in the shape of uniform laws backed by authority of government.
2. Salmond: “A body of principals recognized and applied by the state for the
administration of justice.
Therefor e state l aw can be simply defined as rules made by the state for
administration of justice.
Main features of state law
I. It must be a collection of rules
II. Such rules must be binding and compulsory
III. They must be applicable to certain and specific persons.
IV. Must have been made by machinery of government.
V. Their breach must result into legal punishment by the government.
Main purposes of state law
a. To regulate the behavior of persons
b. To provide justice to members of society
c. To maintain political and economic stability
d. To protect and enforce the fundamental rights and freedomof the individual.
e. To maintain peace and security within a state boundary.
f. To regulate business and social transactions in a society.
Classification of state law
State law shall be classified into the following three main categories:
Public law and private law
Procedural law and substantive law
International law and municipal law
Public law and private law
a) Public law
It concerns the relationship between the state and the individual civilian and the state
does therefore automatically become an interested party in such matters.
On major reason is the fact that:
The modern state is a welfare state and it is therefore the primary obligation of the state
to safeguard public welfare. Public law is further subdivided into the following:
I) Administrative law
It generally concerns management of the daily affairs of the government.
It deals with the relationship and responsibilities of the officers and sub-organs within
the exective armof the government. The main function of the executive as the
administrative wing of the government shall be clearly provided there in.
Disputer and grievances arising between officers within the executive armof government
shall be addressed by court of other relevant authorities basing on provision of
administrative law.
II) Constitution law
This branch is superior to administrative law because ti covers each one of the three
organs of government.
It is by constitutional law that each one of the organs of government and the chief
officers there in shall be established.
This includes- Office of the president, prime minister, speaker of the national assembly,
attorney general, chief justice, ministers and other senior government officers.
– The constitutional and fundamental rights and freedomof the individual shall also
be provided under constitutional law.
– The relationship and responsibilities of the officers within the tree branches of
government shall be clearly laid down in accordance of constitutional law and it is
by the same law that disputes and grievances arising between and individual civilian
and the government as the unit shall be addressed either by court or other relevant
authorities.
III) Criminal law
This is the main branch of public law and it simply concerns criminal wrongs (crime).
Legally crime is interpreted as a public wrong, committed by an individual against a
state and at times by the state against such individuals.
It is for this very reason that the state shall remain on the forefront as an interested
party in our criminal disputes.
In reality though crime is simply a public wrong committed by an individual against
another and the legal fiction that it is a wrong committed against the state was
developed in ancient time in order to deter (discourage) persons from committing
wrongs in this category.
Offences under criminal law shall be prosecuted by the state and on behalf of the
aggrieved party.
Parties in a criminal disputed shall be legally referred to prosecution on one side and
the defense on the other. The prosecution side shall be split into two parts i.e.
a) A state representative e.g. the attorney general, this officer remains the principal
legal advisor to the Kenya government and chief prosecutor of all criminal
offences in Kenya. It is on this basis that criminal offenses in Kenya shall be
prosecuted in the name of the state by the AG, Director of Public prosecution (this
officer is by fact the assistant AG), state Counsel (i.e. state lawyer), or public
prosecutor who shall in most cases be a senior police officer not lower than the
rank of an inspector.
The state representative takes up the criminal matter on behalf of the aggrieved
party by leading such a party in adducing evidence and the entire court process i.e.
he acts as the aggrieved party lawyer in the criminal matter.
b) The aggrieved party: this is simply the complainant and he’s obligation is to appear
in court as the first and main prosecution witness (legally identified as PWI). An
aggrieved party shall not thereof be allowed to lead his prosecution as an
individual and he must rely on the state representative. An exception arises where
court may allow such aggrieved to maintain and proceed with his prosecution
matter an individual.
This shall occur where the complainant proves to the court that upon presenting
his complaint to the police or other relevant authorizes they failed or refuse to
admit the complaint, investigate the matter, arrest or interrogate and charge known
suspects with the commission of a particular criminal offence.
The complainant does therefore request the court to grant him leave, to file and
maintain private prosecution.
c) The defense side shall comprise of the alleged wrong doer i.e the accused. He
remains an accused and innocent until proven guilty by a court of law. He retains
the right to present his defense in person as an individual or through a lawyer of
choice under the laws of Kenya. The right to legal representation enshrined in the
Kenya constitution under the right to fair trial to the extent that an accused who is
unable to finance his legal representation shall retain the right to request court to
grant himsuch representation free of charge and the state must foot the bill.
Meanwhile the accused retains the right to be physically present in court during all
proceedings of his matter and in the event that any proceeds in his absence and
without justified cause such accused can legally challenge the proceedings as
mistrial.
THE CARDINAL RULE IN ALL CRIMINAL DISPUTES
The prosecution side shall prove its case beyond reasonable doubt. It follows that
where there arises any doubt however slight regarding the accused person
involvement in the alleged criminal activity such accused must be released by court.
Parties in a criminal disputed cannot compromise and withdraw the matter from
court hence it must proceed to its final legal conclusion. However compromise may
be allowed by court at any time before the accused has “entered his plea” (i.e
before he has formally responded in court to the question regarding his innocence.
Where the offence is a capital offence compromise shall not be entertained.
Note: the prosecution side may at times request for the discharge of a person. The
gesture does not legally amount to compromise rather it’s simply an indicator that
the investigating officers have suddenly realized they do not possess sufficient
evidence to warrant a conviction. They do therefore advice the AG to approach
court and apply “Nolle prosequi” (do not prosecute or pursue/proceed) where after
the accused will be discharged by court.
Meanwhile it shall be legally accepted that
the prosecution side shall proceed with investigation into the matter and in the
event that credible evidence is uncovered regarding the discharged person
involvement in the alleged criminal activity. Such person must forthwith be
rearrested and charged afresh either in the same court or a different one where
the charges may be the same or reframed in order to suit the new evidence. This
otherwise noble provision is frequently misused by the executive for purposes of
protecting its own interests “nolle prosequ”.
The primary objective of punishment in criminal law is retribution and deterrence
i.e the state aims to avenge for the aggrieved party while at the same time the
punishment administered is expected to discourage lie minded persons from
committing similar offenses in future.
– Criminal punishment is therefore quite severe. A secondary objective of criminal
punishment is reformation but a keen study of criminology and penology confirms
the fact that the state is not eager to reform its citizens especially with regard to
petty offenses because the most appropriate for of punishment for petty offenses
is the imposition of fines which remain a major source of state revenue.
MAIN FORMS OF CRIMINAL PUNISHMENT
1 . The capital punishment
This is also known as execution and it simply the death penalty. It is the most severe form
of punishment under the law and it is awarded for the commission of a capital offense.
The capital offences in Kenya are: murder, robbery with violence, treasons espionage,
attempted robbery with violence.
– This formof punishment falls under the deterrent and retributive theories of
punishment. It has lost popularity in modern governance because it has failed to
deter persons fromcommitting capital offences and it’s also runs against the God
given right to life.
2. Imprisonment
This is either life imprisonment (i.e transportation) or imprisonment for any other term
less than life with or without hard labour.
3. FinesThe money collected fromthe convict eventually forms part of state revenue.
4. Forfeiture
Property found in the convicts possession is confiscated by the state especially where
such property is contraband, illegal, dangerous or where it was used in the commission of
the offence.
5. Extra mural punishment (EMP)
This is popularly known as community service
It is a non-custodial order whereby the convict is ordered to perform beneficial community
sercice for a specified period.
6. Suspended sentence
It is also non-custodial jail term is pronounced upon the convict and he is thereafter
released by court but expected to be of good behavior during the pronounced suspension
term. Failure of which the suspension shall be lifted and the convict jailed for the
pronounced term. This form of punishment applies to first time petty offenders.
7. Conditional discharge
The accused is released by court but ordered to report to a specified government office
for a given period or to undertake any other task prescribed by the court.
8. Probation
This shall arise in either one of the following 2 ways:
a) The convict may be lucky not to serve any jail termand he will simply be released by
court after judgment is entered but he will be ordered to report to a specified
probation officer for a given period. The probation officer shall monitor the
convict’s behavior and recommend to court whether such a convict has reformed.
b) The court retains the right to order for the re-arresting and subsequent jailing of
the convict if he fails to reform.
c) The convict may have already served part of his jail termand will then be given an
early release is legally known as parole.
9. Prohibitories/ restraining orders
These shall arise where the court orders the convict to refrain from visiting specified
locations or being in contact with certain persons for a given period.
The court shall pronounce the minimum distance to be maintained between the convict and
complainant and where such convicts fail to respect the order, he shall be re-arrested and
jailed for a particular period.
Basic procedure in presenting a criminal complaint to the police
1 . Where a person has reason to believe that crime has been committed against him
and he or she wishes that the law takes its course. The following shall be expected:
The complainant must at the earliest possible time report the incident to a police
station within the area where the alleged criminal activity was committed and in
doing so he will be legally deemed to have ledged a police complaint.
2. The police must then enable the complaint to record a formal statement regarding
the incident and surrender all the relevant evidence in his possession to the police.
3. Upon the police establishing that the incident amounts to crime, they must
immediately thereafter commence investigation in the matter and arrest all known
suspects.
4. The police must then professionally interrogate the suspects and thereafter
enable all suspects deemed to have been involved in the criminal activity to record
their respective police statement. Suspects having recorded statement shall be
given the opportunity to confirm the content of the respective statement before
appending their mark to the concluding words of each statement.
5. Where the police are fully satisfied that crime was indeed committed by a particular
suspect they must procedurally alert the suspect and charge him with the
commission of the particular offense and immediately detain the suspect at the
police station (should the police regard the offense to be minor they will have the
direction to give the accused a police bond or free so as to allow him leave the
police station in preparation for court attendance but this should only arise where
the police are convinced that the accused is likely to abscond.
6. The accused must be arraigned before court within 24hrs of commencement of
detention (where the offence is ordinary) or 1 4days (where it is a capital offense)
or in either of the two instances as soon as possible so that he can enter his plea.
7. Upon entering a plea of “not guilty” the judge or magistrate shall give the accused
an option to post bail and where the accused does so satisfactorily he shall be
given temporary release by the court to await trial process (bail shall not be issued
for capital offense and in circumstances where court is convinced that the
accused is likely to jump bail or tamper with the evidence).
8. Court process shall commence and under normal circumstances and attendance
court shall be at an interval of 1 4days. This period enables the accused to prepare
for the hearing. The accused retains the legal right to be physically present during
all the hearings regarding his matter.
B PRIVATE LAW
– This branch of law governs the relations of civilians inter-se among themselves
and it is for this particular reason that private law shall also be popularly known as
civil law. It concerns civil wrongs. The state is not directly interested in such
matters and it will therefore be upon the complainant to organize for the filing of
his claim in court either as an individual or through a lawyer of choice. Parties in a
civil dispute shall be known as the plaintiff vs the defendant whereby the plaintiff
is the complainant or aggrieved party while the defendant is the alleged wrong doer.
Each one of these parties shall retain the right to prevent his case in person or
through a lawyer of choice.
– The cardinal rule in all civil claims is that the plaintiff shall only need to prove his
case on a balance of probabilities. This therefore confirms that the degree of
proof in civil claims is not as high as that of criminal dispute.
– Parties in a civil dispute may compromise and withdraw the matter from court at
anytime before judgement is entered. They will simply be required to agree among
themselves and file consent before the court.
– The primary objective in civil law is restitution and compensation i.e the court aims
to return/restore the aggrieved party to the nearest position he would have been
if the wrong had not been committed. On this basis civil punishment is not as
severe as criminal punishment and it is usually inform of financial compensation
known as damages. Other forms of civil punishment include the following:
a. Rescission – this is an order for withdrawal from a relationship or
transaction (divorce).
b. Injunction– it is an order which compels a person to stop or refrain from
doing that which is causing injury or harm upon another.
c. Specific performance– it is an order compelling a person to do or accomplish
that which he had promised.
d. Quantummeruit– it means a s much as earned. It is an order which enables a
person to be paid or compensated for work or services rendered and nothing
more.
e. Attachment and sale of property– it is an order which enables the aggrieved
party to identify, attach and sell the wrong doers property inorder to pay
himself the amount owing.
f. Civil jail– it is a short jail term awarded where the judgement debtor has
failed to respect any other orders and remedies.
Civil law covers many branches including the following:
Law of contract
Law of tort
Sale of goods
Hire purchase
Agency
Succession
Trusteeships
Procedural law and substantive law
a) Procedural law
This is the branch of law which provides regulations governing legal proceedings
in both the civil and criminal branches of law of a particular state. The procedures
include all that is legally required fromthe moment a complainant presents his
complaint to the relevant authorizes, the expected reaction right through to the
moment the matter is heard by court and judgement entered e.g. in criminal disputes,
the procedures covered shall include the procedure of lodging a common complaint
with the police or other relevant authorities, the mode of recording a police
statement and filing preliminary reports such as the police abstract and p3 forms,
the mode of conducting an identification parade for prime suspects etc
In civil law the procedures shall include; the mode of drafting a plaint (i.e statement
of allegations made by the plaintiff against the defendant), statement of defence,
summonses and other civil reports.
Other than the documentation procedures, procedural law also covers matters
relating to the court process, including production of evidence and witness before
court, procedure to cross examine witnesses, mode of lodging appeals etc.
Where a person fails to adhere to the legally set procedures he risks losing his
case on a legal technicality.
Procedural law shall be contained in various sttutes including the criminal
procedure codes the civil procedure act, the evidence Act. Etc
b) . Substantive law
This is also known as adjectival law. It comprises of the actual rules which identify a
specific legal wrong under the laws of a particular state and this shall cover both the civil
and criminal branches of law of that state.
Under substantive law, a particular misbehavior shall be identified and regarded a legal
wrong and its legal definition shall also be sorted.
The ingredients of these legal wrong shall also be provided and its legal punishment
thereafter clearly prescribed.
In the event that there are exceptions of this offense such exceptions must also be
provided.
Where a specific misbehavior has not been identified as an offence under the substantive
laws of a particular state, such misbehavior shall not punishable by the law.
o Substantive law is contained in various statutes including the sale of goods act,
the highway code
o Penal cod
