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Complete copy of CPA INTRODUCTION TO LAW AND GOVERNANCE Revision Kit is available in SOFT copy (Reading using our MASOMO MSINGI PUBLISHERS APP) 

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Email: info@masomomsingi.com

UNIT DESCRIPTION

This paper is intended to equip the candidate with the knowledge, skills and attitude that will enable him/her to apply the principles of law and legal systems in an entity and ensure compliance with basic principles of governance and ethics.

 

LEARNING OUTCOMES

A candidate who passes this paper should be able to:

• Demonstrate knowledge of essential elements of the legal system
• Demonstrate knowledge of legal personality
• Apply law of contract and tort in various scenarios
• Apply general principles of business law in practice
• Apply fundamental principles of ethics in practice
• Comply with fundamental principles of governance

 

CONTENT

 

1. Nature, Purpose and Classification of Law

1.1 Meaning of law

1.2 Nature of law

1.3 Purpose of law

1.4 Classification of law

1.5 Law and morality

1.6 The Constitution

1.7 Legislation and delegated legislation

1.8 Substance of common law and doctrines of equity

1.9 African customary law

1.10 Islamic law, Hindu law and African customary law

1.11 Judicial precedence

1.12 General rules of International law and ratified treaties

 

2. Administrative Law

2.1 Meaning of administrative law

2.2 Sources of administrative law

2.3 Functions of administrative laws

2.4 Doctrine of separation of powers

2.5 Delegated legislation

2.6 Control of delegated legislation

2.7 Discretion and Judicial count of executive

2.8 Liability of state (contractual/ tortious)

2.9 Principles of natural justice

2.10 Judicial control of the Executive

2.11 Independence of Judiciary

2.12 Remedies in administrative law (mandamus, certiorari, prohibition, habeas corpus; injunction and declaration)

 

3. The Court System

3.1 Establishment, structure, composition and jurisdiction of courts

3.2 Supreme Court

3.3 Court of Appeal

3.4 High Court

3.5 Employment and Labour Relations Court

3.6 Environmental and Land court

3.7 International Court of Justice

3.8 Magistrates Court

3.9 Court Martial

3.10 Kadhi’s Court

3.11 Distinction between Courts and Tribunals

 

4. Alternative Dispute Resolutions (ADR)

4.1 Nature of alternative dispute resolutions (ADR)

4.2 Nature and types of disputes

4.3 Legal framework governing ADR

4.4 General principles of ADR

4.5 Negation and Conciliation

4.6 Mediation

4.7 Arbitration

4.8 Dispute Review Boards

4.9 Traditional dispute resolution mechanisms

 

5. Law of Persons

5.1 Natural and artificial persons

5.2 Nationality, citizenship and domicile

5.3 Unincorporated and incorporated associations

5.4 Co-operative societies

 

6. Law of Tort

6.1 Nature of tort

6.2 General defenses under tort

6.3 Negligence

6.4 Types of liabilities in tort

6.5 Trespass

6.6 Limitation and survival of actions

6.7 Remedies in tort

6.8 Principles in awards damages

6.9 Defamation

 

7. Law of Contract

7.1 Definition of a contract

7.2 Classification of contracts

7.3 Essentials of a valid contract

7.4 Terms of a contract

7.5 Exemption clauses

7.6 Vitiating factors

7.7 Discharge of contract

7.8 Remedies for breach of a contract

7.9 Limitation of actions

7.10 Contract negotiation

7.11 Information technology and the law of contract

 

8. Sale of Goods

8.1 Nature of the contract of sale of goods

8.2 Types of goods

8.3 Formalities of the contract

8.4 Terms of the contract

8.5 Implied terms by statute, custom/usage

8.6 Rights and duties of the parties

8.7 Remedies for price and breach of contract

8.8 Auction sales

8.9 International contracts of sale: FAS, FOB, CIF, FCA, CPT, CIP, DAT, DAP, DDP, CFR, DAF, DDU, Ex-works and Ex-ship

 

9. Agency

9.1 Meaning and nature of the agency contract

9.2 Types of agents

9.3 Parties to the agency relationship

9.4 Creation of agency

9.5 Authority of an agent

9.6 Rights and duties of the parties

9.7 Personal liability of agents

9.8 Liability of the parties

9.9 Termination of agency

 

10. Partnership

10.1 Nature of partnership

10.2 Registration process and requirements of partnership business

10.3 Types of partnerships

10.4 Rights, duties and liabilities of existing, incoming and minor partners

10.5 Management of partnerships

10.6 Dissolution of partnerships and its consequences

 

11. Indemnity and Guarantees

11.1 Essential features of indemnity

11.2 Nature and extent of liability of indemnifier

11.3 Commencement of liability of indemnifier

11.4 Nature of the contracts; essential features of contract guarantee; distinction between contract of guarantee/ indemnity extent of nature and surety

11.5 Obligations of surety

11.6 Discharge of surety

11.7 Letters of credit

11.8 Rights and duties of the parties

11.9 Termination of the contract

11.10 Remedies for breach of contract

 

12. Insurance

12.1 Nature of the contract; types, parties to negotiable instrument

12.2 Formalities of the contract

12.3 Types of risks

12.4 Parties to the contract of insurance

12.5 Principles of insurance

12.6 Types of insurance

12.7 Transfers and amalgamation

12.8 Termination of the contract

12.9 ICT and insurance

 

13. Negotiable Instruments

13.1 Nature and characteristics

13.2 Negotiability of the instrument

13.3 Types: Cheques, promissory notes, bills of exchange

13.4 Types of crossings

13.5 Obligations of the parties

13.6 Banker- customer relationship

13.7 Presentment; purpose, time, place

13.8 Discharge from liability

13.9 Modes of discharge

13.10 Dishonour, mode of dishonour, nature of protest, penalties for dishonour

13.11 Acceptance for honour

13.12 Criminal liability

 

14. The Law of Property

14.1 Definition of property

14.2 Classification of property (real and personal, movable and immovable, tangible and intangible)

14.3 Property in land: Private, public and community land

14.4 Interests in land: Estates, servitudes and encumbrances

14.5 Intellectual property: Plant breeder’s patents, trademarks, copyrights and industrial designs

14.6 Administration and management of land

14.7 Sectional properties

14.8 Management company

14.9 Obligations of lessor and lessee in sessional property Act

14.10 Transfer of land rights

14.11 Role of professionals (Advocates, Certified Secretaries) in land transactions

 

15. Introduction to corporate governance

15.1 Corporate governance – Definition and objects

15.2 Principles of corporate governance

15.3 Best practice in corporate governance

15.4 Role of stakeholders (shareholders, Board of Directors, Government)

15.5 Conflict of interest – Investor education and protection of shareholders

15.6 Compliance obligations

15.7 Legal Audit- definition and objects

 

16. Professional Ethics

16.1 Introduction and overview of professional ethics

16.2 Professional misconduct

16.3 Publicity and advertisement

16.4 Morality and etiquette

16.5 Professional ethics for accountants, corporate secretaries

16.6 Ethics and practice within a firm

16.7 Enforcement of professional ethics and standards

 

 

TOPIC 1

 

NATURE, PURPOSE AND CLASSIFICATION OF LAW

QUESTION 1

December 2023 Question Two B

State THREE functions of law.    (3 marks)

 

ANSWER

1. Social Control: This function ensures a predictable and stable society by establishing expected behaviors and punishing those who deviate from them. The law acts as a formal system, setting clear rules and enforcing them.
2. Dispute Settlement: Law provides a framework for resolving disagreements between individuals or groups. This prevents violence and ensures fair resolution of conflicts, often through courts or alternative methods.
3. Social Change: Law can be a tool for enacting social change in a planned and controlled way. The flexibility of law allows it to adapt to evolving social conditions, preventing unrest and facilitating progress.
4. Regulation: Law regulates behavior within society by establishing rules and standards that govern interactions between individuals, groups, and institutions. This function helps maintain order and stability.
5. Protection: One of the primary functions of law is to protect the rights and interests of individuals and groups. This includes safeguarding fundamental human rights such as freedom of speech, religion, and assembly, as well as protecting property rights, contractual agreements, and personal safety.
6. Promotion of justice: Law plays a crucial role in promoting justice by ensuring fair treatment and equality under the law. It establishes principles of fairness, impartiality, and due process, and provides avenues for seeking redress when injustices occur.
7. Facilitation of social change: Law can serve as a tool for promoting social change and progress by enacting new legislation or reforming existing laws to address emerging issues, promote equality, and adapt to evolving societal norms and values.
8. Preservation of order and stability: Law contributes to the preservation of order and stability within society by providing a framework for the functioning of institutions, the enforcement of rules, and the resolution of conflicts. It helps mitigate the potential for chaos and ensures predictability and consistency in governance.
9. Promotion of public welfare: Law is often used to advance the public interest and promote the welfare of society as a whole. This may involve the regulation of industries to protect public health and safety, the provision of social services, or the establishment of environmental protections.

 

QUESTION 2

August 2023 Question One B

Highlight SEVEN characteristics of a good law. (7 marks)

 

ANSWER

Characteristics of a good law

1. Just: A good law promotes fairness and equity, ensuring everyone is treated equally under the law.
2. Clear and concise: The law should be written in understandable language, avoiding ambiguity and confusion for those who need to follow it.
3. Enforceable: A good law has clear mechanisms for enforcement, with designated authorities and appropriate penalties for violations.
4. Effective: The law should achieve its intended purpose, effectively addressing the issue it was created to tackle.
5. Respectful of rights: A good law should protect fundamental rights and freedoms, striking a balance between individual liberty and societal needs.
6. Stable, yet adaptable: While providing predictability, a good law should have the flexibility to adapt to changing social circumstances over time.
7. Publicly known: A good law is accessible to the public, allowing citizens to understand their rights and responsibilities under the law.

 

QUESTION 3

April 2023 Question One B

List FIVE types of substantive law.       (5 marks)

 

ANSWER

Substantive law is the set of laws that governs how members of a society are to behave. It is contrasted with procedural law, which is the set of procedures for making, administering, and enforcing substantive law.  Types of substantive law are:

1. The Law of torts
2. The Law of succession
3. The Law of contract
4. The Law of marriage
5. The Penal Code

 

QUESTION 4

April 2023 Question Two A

Summarise FOUR differences between “civil” and “criminal cases”. (8 marks)

 

ANSWER

Differences between “civil” and “criminal cases

Civil case	Criminal case
offence against another individual	Offence against the state
To deal with the disputes between individuals, organizations, or between the two, in which compensation is awarded to the victim.	To maintain the stability of the state and society by punishing offenders and deterring them and others from offending.
Claimant must produce evidence beyond the balance of probabilities.	Beyond reasonable doubt
The plaintiff, the party that is suing The defendant , the one being sued	Prosecution which represent the state and the accused
Claimant must give proof however, the burden may shift to the defendant in situations of Res Ipsa Loquitur (The fact speaks for itself).	“Innocent until proven guilty”: The prosecution must prove defendant guilty.
Compensation (usually financial) for injuries or damages, or an injunction in nuisance.	A guilty defendant is subject to Custodial (imprisonment) or Noncustodial punishment (fines or community service). In exceptional cases, the death penalty.

 

QUESTION 5

April 2023 Question Five B and C

b) Describe the procedure of making laws in parliament. (8 marks)

(c) Identify SIX challenges of common law that equity sought to mitigate.    (6 marks)

 

ANSWER

b) The law making process begins by Bills being passed by the National Assembly.

The Bill passes through the following stages to become law

1. First reading
2. Second reading
3. Committee stage
4. Reporting stage
5. Third reading
6. President’s Assent

Before the first reading, the Bill is published in the Kenya Gazette for information purposes. All bills must be published in the Kenya Gazette to inform the public and parliamentarians of the intended law. As a general rule, a Bill must be published at least 14 days before introduction to the National Assembly. However, the National Assembly Is empowered to reduce the number of days.

• First reading: Under this stage, the clerk reads out only the title of the bill. No debate or vote takes place here. After the first reading the date for the second reading is fixed. If the Bill is approved at this stage, then it is printed and circulated among the members of Parliament to enable them prepare for a debate of this Bill. This Is the Introductory stage of law making.
• Second reading: This is the most important stage of the bill. At this stage the Minister or the member in charge of the Bill explains the main feature of the Bill. A debate takes place and the members of the house are allowed to participate in the debate.
• Committee stage: It the bill is passed at the second reading, then it moves to the committee stage. Here the details of the various aspects contained in the bill are analysed and scrutinized by the committee of the whole house or a select committee which consists of some selected members of the house.
• Report Stage: After scrutiny and analysis at committee stage, the report of the same is submitted to the house. If any amendments are made at the committee stage, the same are debated again, then the bill moves to the third reading if approved
• Third reading: Here there are no much debates. A final vote is given after minimal debate, and if approved, the bill is said to have been passed
• President’s Assent: A bill passed by the National Assembly does not become law until the President gives his assent. The President may refuse to give his assent if in his opinion the bill does not serve the best interest of the people. A bill becomes a law as scan as it gets the President’s assent.

 

c) Problems/shortcomings of common law

1. Writ System: Cases at common Law were commenced by a writ issued by the Royal office. There were separate writs for different complaints. However, This system did not recognize all possible complaints and many would be plaintiffs had no access to the courts, The writ system encouraged corruption AND It lengthened the course of justice
2. Rigidity/inflexibility: The common Law courts applied the doctrine of Stare Decisis. This practice rendered the legal system rigid and hence unresponsive to changes.
3. Procedural technicalities: The Common Law procedure of administration of justice was highly technical. Common Law courts paid undue attention to minor points of procedure and many cases were often lost on procedural matters.
4. Delays: The administration of justice at common Law was characterized by delays. Defendants often relied on standard defenses to delay the course of justice. These defenses were referred to as essoins and included; Being out by floods, being unwell or being away on a crusade. If sickness was pleaded, the case could be adjourned for 1 year and 1 day.
5. Non-recognition of trusts: Common Law did not recognize the trust relationship. This is an equitable relationship whereby a party referred to as a trustee, expressly, impliedly or constructively holds property on behalf of another known as beneficiary. At common Law beneficiaries had no remedies against errant trustees and trustees had no enforceable rights against beneficiaries.
6. Inadequate remedies: Common Law courts had only one remedy to offer namely monetary compensation or damages. They could not compel performance or restrain the same.
7. Inadequate protection of borrowers: At common Law, a borrower who failed to honour his contractual obligations within the contractual period of repayment would lose not only his security but the total amount paid.

 

QUESTION 6

December 2022 Question Two B and C

(b) Distinguish between “law” and “morality”.      (4 marks)

(c) Subordinate courts are bound to apply the decisions of superior courts in subsequent similar cases where they have been pleaded as law.

Describe FIVE exceptions to this rule.      (10 marks)

 

ANSWER

Distinguishing between “law” and “morality”

Difference Between Law and Morality
Definition	Law is the system of rules which a particular country or community recognizes as regulating the actions of its members and which it may enforce by the imposition of penalties.	Morality is the set of ethical principles that define what is morally right and morally wrong.
Enforcement	Law is enforced by the ruling bodies of a country; state or a community	There is no such significant body to enforce moral codes; however, they are followed by those that are taught by the religious teachings and social ethics
Constitution	Laws creates the constitution of a country	There is no direct connection with the constitution in morality
Emergence	Influenced by Morality	Emerged before the ideal of set laws in a community or a country.
Sanctions and Punishments	There are direct punishments for those who violate the law	There are no such enforced direct punishments for those who do immoral acts.
Effect	Law is direct and rough with punishments	Morality can be followed or not according to the person’s choice.

 

(c) Subordinate courts are bound to apply the decisions of superior courts in subsequent similar cases where they have been pleaded as law. The following are the exceptions to this rule:

1. Distinguishing: here the judge in the subsequent case demonstrates that the two cases relate to different points of law hence the earlier decision cannot be relied upon as a precedent.
2. Changes in circumstances: if circumstances have changed so much so that applying the precedent would be ineffectual. This is the case where the precedent has been overtaken by events.
3. Per incuriam: Per incuriam literally means ignorance or forgetfulness of law. Here the court demonstrates that the earlier decision was arrived at in ignorance or forgetfulness of law i.e. it is a wrong decision.
4. Overruled by Statute: A precedent cannot be relied upon if it has been overruled by an Act of Parliament.
5. Improper conviction: In Kabui V.R. the High court of Kenya was emphatic that it could refrain from a binding precedent if its application perpetrated an improper or erroneous conviction in a criminal case.
6. Obscure or wide rule: If the ratio decidendi of the previous decision is too wide or obscure, a court may refuse to rely on it.
7. Conflicting decisions: If the decision relied upon as a precedent is one of the many conflicting decisions of a court of co-ordinate jurisdiction.
8. Fundamental Principle of Law: If the ratio decidendi relied upon us inconsistent with a fundamental principle of law.

 

QUESTION 7

December 2022 Question Three C

Discuss FIVE types of precedents.    (10 marks)

 

ANSWER

Types of precedents

1. Original precedents: This is a principle or proposition of law as formulated by the court. It is the law-creating precedent.
2. Declaratory Precedent: This is the application of an existing principle of law in a subsequent similar case.
3. Binding precedent: This is an earlier decision which binds the court before which it is relied upon. E.g. a precedent of the Court of Appeal used in the High Court.
4. Persuasive Precedent: This is an earlier decision relied upon in a subsequent case to persuade court to decide the case in the same manner e.g. a High Court decision used in a Court of Appeal, or a decision handed down by a court in another country.
5. Distinguishing precedent: This is a subsequent decision of a court which effectively distinguishes the earlier precedents. It is a precedent in its own right.

 

QUESTION 8

August 2022 Question One

(a) In relation to the classification of law, distinguish between:

(i)  “Municipal law” and “international law”.       (4 marks)

(ii) “Substantive law” and “procedural law”.      (4 marks)

 

(b) Distinguish the remedies available in civil law and those available under criminal law.  (4 marks)

(c) State eight sources of law identified by the Judicature Act.       (8 marks)

 

ANSWER

(a) (i) Distinction between “Municipal law” and “international law”.

Municipal/ national law: This refers to rules of law that are applicable within a particular country or state. This is state law. It regulates the relations between citizens inter se (amongst themselves) as well as between the citizens and the state. It originates from parliament, customary and religious practices.

International law: This is a body of rules that generally regulates the relations between countries or states and other international persons e.g. United Nations. It originates from international treaties or conventions, general principles and customary practices of states.

Differences between “Municipal law” and “international law”
Basis for Comparison	International law	Municipal law
How laws are created	Treaties, customs, and international agreements form the basis of international law. There is worldwide governing agency that conforms to agreements that member countries can choose to follow.	There are no treaty obligations in place.
Law enforcement	In international law, there is no police agency to monitor the complete international jurisdiction. Even organizations like the United Nations with a maximum number of countries in the group work as coordination agencies. In case of disputes between two countries, treaties are made to enforce international laws.	In legal disputes of municipal law, the decision of the case is made either on civil laws or in the form of statutes.
Role of parties included in legal disputes	If parties having conflicts are Sovereign countries, international laws will apply to solve disputes.	Disputing parties are citizens of the same country, and municipal law enforcement, courts, and national legal procedures are applicable to settle the disputes.

 

(ii) Distinction between “Substantive law” and “procedural law”

Substantive law: It consists of the rules themselves as opposed to the procedure on how to apply them. It defines the rights and duties of the parties and prescribes the remedies applicable. Substantive law defines offences and prescribes the punishment, for example: The Law of torts, The Law of succession, The Law of contract, The Law of marriage and The Penal Code

 

Procedural law: This is adjectival law. It consists of the steps or guiding principles or rules of practice to be complied with in the administration of justice or in the application of substantive law. For example: The Civil Procedure Code and The Criminal Procedure Code

Comparison Chart

Basis for Comparison	Procedural Law	Substantive Law
Meaning	Procedural law is a law that specifies the practice, procedure and machinery for the imposition of rights and duties.	Substantive Law is the law that states the rights and obligations of the parties concerned.
Governs	How legal case flows?	How people should behave?
Concerned with	Ways and means for imposing substantive law.	Fixation of rights and duties of the citizens.
Context	Applicable to legal and non-legal context.	Applicable to legal context only
Governance	By statutory law.	By act of parliament.
Defines	Initiation and prosecution of civil and criminal lawsuits.	Rights of parties and punishment for wrongdoer.
Related to	Matters inside the court	Matters outside the court

 

(b) Distinction between remedies available in civil law and those available under criminal law

In criminal cases, persons found guilty of criminal acts are sentenced per the guidelines provided by the criminal code or other statutes. Prescribed penalties include fines payable to the government, incarceration, and probation.

In civil cases, if the defendant is found liable, they are ordered to compensate the plaintiff or fulfil their contract.

 

(c) Sources of law identified by the Judicature Act

1. The Constitution
2. Legislation (Act of Parliament) (Statutes)
3. Delegated legislation
4. Statutes of General Application
5. Common law
6. Equity
7. Case law or (judge–made law)
8. Africa Customary law

 

QUESTION 9

August 2022 Question Six C

Discuss four advantages of the doctrine of “stare decisis”.    (8 marks)

 

ANSWER

Advantages of the doctrine of “stare decisis”

1. Certainty and predictability: stare decisis enhances certainty in law and predictability in the legal system. In Dodhia case Newbold observed that a system of law required a considerable degree of certainty.
2. Consistency and uniformity: stare decisis promotes consistency in decision making. This is because similar cases are decided alike. This enhances or promotes uniformity in the administration of justice.
3. Rich in detail: Many decisions have been made. Case law is one of the richest areas of law.
4. Flexibility: it is contented that when judges in subsequent cases attempt to distinguish earlier decisions of other judges, this introduces some flexibility into the legal system.
5. Aptitude to growth: it is argued that case law grows with time in that superior courts are free to depart from previous decisions if circumstances justify.
6. Convenience: Judges in subsequent cases apply the law as formulated in previous decisions, thus case law is convenient in application in that judges are not obliged to formulate principles all the time.
7. Practical: propositions of law are formulated on the basis of prevailing circumstance. It is a practical approach to resolution of legal problems.

 

QUESTION 10

April 2022 Question Five B

(i)  Examine four salient features that define the Supremacy of the Constitution of a country.      (8 marks)

(ii) Highlight two ways in which a Kadhis Court might apply Islamic law.    (2 marks)

 

ANSWER

(i)  Salient features that define the Supremacy of the Constitution of a country

1. Validating norm: All other laws derive their validity from the constitution.
2. Proclaims supremacy: Constitution is emphatic that it is the supreme law and any other law inconsistent with it is void to the extent of the inconsistency.
3. Organs of government: The constitution creates the principal offices and organs of government i.e. the legislative, executive and the judiciary, office of the Attorney General, Auditor General, commissioner of police, the electoral commission and the public service commission
4. Special amendment procedure: under the provision of the constitution a Bill seeking to amend the constitution must be supported by not less than 65% of all members excluding the ex-officio members during the second and third readings.
5. Fundamental rights and freedoms: Constitution guarantees the fundamental rights and freedoms of the individual. A person whose right or freedom has been, is being or likely to be violated has Locus Standi to seek judicial redress

 

(ii) Ways in which a Kadhis Court might apply Islamic law

1. To settle disputes in respect of Muslim law relating to personal status
2. To settle disputes in respect of Muslim law relating to marriage
3. To settle disputes in respect of Muslim law relating to divorce
4. To settle disputes in respect of Muslim law relating to Inheritance

 

QUESTION 11

December 2021 Question One A, B and C

(a) Describe two advantages that unwritten law has over written law.      (4 marks)

(b) Identify five factors that are likely to undermine the rule of law.    (5 marks)

(c) Explain six grounds for judicial review.       (6 marks)

 

ANSWER

(a) Advantages that unwritten law has over written law

1. An advantage of unwritten law is that it is relatively easy to change
2. There are no technical or special procedures relating to amendments.
3. Unwritten constitution does not give rise to much litigation like the written law
4. Unwritten law grows with the people
5. Easy and quick decision making in time of urgency

 

(b) Factors that are likely to undermine the rule of law

1. Excessive power of the Executive
2. Non – independent Judiciary
3. Corruption
4. Selective prosecution
5. Civil unrest
6. Ignorance of the law

 

(c) Grounds for judicial review

Grounds for Judicial review are the circumstances in which an aggrieved person may petition the High Court for Judicial Review.

Courts of Law will intervene in public administration in one or more of the following circumstances i.e. courts of law will review actions of administrative bodies in one or more of the following circumstances:

1. When a body acts ultra vires;
2. Unreasonableness;
3. When there is jurisdictional error;
4. When there is an error of law;
5. When there is an error of fact;
6. When there is an abuse of power;
7. When irrelevant considerations governed the making of a decision;
8. When there is bias;
9. When there is unfair hearing;
10. When there is procedural flaw;
11. When there is irrationality
12. When a public official or body acts in bad faith;
13. When there is breach of the principles of natural justice.

SAMPLE WORK

Complete copy of CPA INTRODUCTION TO LAW AND GOVERNANCE Revision Kit is available in SOFT copy (Reading using our MASOMO MSINGI PUBLISHERS APP) 

Phone: 0728 776 317

Email: info@masomomsingi.com

QUESTION 12

December 2021 Pilot Paper Question One A

Customary law is a source of law in many countries. However, it must fulfill the criteria set before it is accepted as a source of law.

With reference to the above statement, outline the criteria to be fulfilled.           (10 marks)

 

ANSWER

Criteria to be fulfilled for customary law to be accepted as a source of law

1. Reasonableness; A good local custom must be reasonable i.e. it must be consistent with the principle of justice. Whether or not a custom is reasonable is a question of facts to be determined by the courts.
2. Conformity with statute law: A local custom must be consistent with parliament made law. This is because parliament is the principle law-making body and has Constitutional power to disqualify the application of any rule of custom.
3. Observation as of right: A good local custom is that which a society has observed openly and as of right i.e. not by force or by stealth nor at will.
4. Immemorial antiquity: A custom must have been observed since time immemorial. Time immemorial means that no living person can attest as to when the custom did not exist.
5. Peaceable Enjoyment: The next important test is that custom must have been enjoyed peaceably. If a custom has been in dispute for a long time in a court of law or otherwise, it will negate the presumption that it did originate by consent as most of the custom naturally did. Therefore, for the enforceability of a custom; it is necessary to show that the custom has been enjoyed without any disturbance or contest. A custom is based on consent or habit, and unless there was an undisturbed existence of the custom, we cannot say that it was based on the general consent of the people

 

QUESTION 13

August 2021 Question One A and B

a) Distinguish between “criminal law” and “civil law”.      (6 marks)

(b) Explain four disadvantages of using African Customary Law as a source of law. (8 marks)

 

ANSWER

a) Distinction between Civil Law and Criminal Law 

Parameters	Criminal Law	Civil Law
Meaning	Criminal law deals with a crime that causes damage to a person which is an offence against society as well. The relief of crime committed is to charge the person with Imprisonment.	Civil law deals with the disputes between individuals, organizations, or between the two, in which compensation  is awarded to the victim.
Liability	It creates a liability for the preparator against society and the victim.	It creates a private liability against an individual or an organisation.
Burden of proof	“Beyond a reasonable doubt”: Burden of proof is always on the state/government.	“Preponderance of evidence” The burden of proof falls on the plaintiff. One must produce evidence beyond the balance of probabilities.
Punishment	Justice is given by providing the accused imprisonment for a term or fine or both.	Justice is given by providing monetary relief against the damages in most cases.
Triable	Cases under Criminal law are tried under Criminal Court or Sessions Court.	Cases under Civil law are triable under Civil Court or equivalent tribunals.
Objective	Objective of Criminal law is providing justice to the victim by punishing the accused.	Objective of Civil law is dispute resolution between Individuals
Filing of the case	In Criminal Cases, the government files on behalf of the victim	In Civil Cases the aggrieved party files the case
Registration	In Criminal Cases, the case needs to be registered in the police office before the court directly	Normally in Civil Cases, the case can be directly filed to the Court.
Infringement	Infringement of public rights	Infringement of private rights
Examples of Acts	Murder, Rape, Kidnapping, theft, trafficking in controlled substances etc.	Negligence, Invasion of privacy, Trespass etc.

 

(b) Disadvantages of using African Customary Law as a source of law

1. Customary law is often unwritten and may vary from one community to another, making it difficult to apply consistently and fairly.
2. Customary law is often based on tradition and may not be in line with modern values and human rights standards, which can lead to discrimination and inequality.
3. Customary law is often not subject to the same level of scrutiny and legal oversight as formal legal systems, which can lead to abuses of power and corruption.
4. Customary law can be difficult to enforce and may not provide the same level of protection and recourse for individuals as formal legal systems.

 

QUESTION 14

May 2021 Question one A

Explain four features of the civil law system.      (8 marks)

 

ANSWER

Features of the civil law system

A body of rules that delineate private rights and remedies, and govern disputes between individuals in such areas as contracts, property, and family law distinct from criminal or public law

Salient features                                       

• Clear expression of rights and duties, so that remedies are self-evident.
• Simplicity and accessibility to the citizen, at least in those jurisdictions where it is codified.
• Advance disclosure of rules, silence in the code to be filled based on equity, general principles, and the spirit of the law.
• Richly developed and to some extent transnational academic doctrineinspiring the legislature and the judiciary

 

QUESTION 15

May 2021 Question Three B and C

b) Identify four common characteristics of law.   (4 marks)

c) Explain three types of delegated legislation.    (6 marks)

 

ANSWER

b) Common characteristics of law.

• It is a set of rules.
• It regulates the human conduct
• It is created and maintained by the state.
• It has certain amount of stability, fixity and uniformity.
• It is backed by coercive authority.
• Its violation leads to punishment.
• It is the expression of the will of the people and is generally written down to give it definiteness.
• It is related to the concept of ‘sovereignty’ which is the most important element of state.

 

c) Types of delegated legislation.

Delegated legislation consists of rules, orders, regulations, notices, proclamations e.t.c. made by subordinate but competent bodies e.g.

• County governments
• Professional bodies such as ICPA(K)
• Statutory boards
• Government ministers

Types:

By-laws

Bylaws can be made by county governments to cover matters within their own area for example Nairobi county council can pass laws affecting the whole county e.g. law barring illegal dumping in estates

Statutory Instruments

Statutory Instruments refers to the rules and regulations made by government ministers. They are given authority to make regulations for areas under their particular responsibility.

Orders in council

A large number of orders and regulations are issued by the Privy Council. These orders and regulations affect matters of importance. The field covered is very wide and they touch upon the interest of the various sections of the society

 

QUESTION 16

November 2020 Question One C

In the context of sources of law:

(i) Explain two forms that a persuasive precedent might take.       (2 marks)

(ii) Itemise six components of a judicial precedent (judgment).     (6 marks)

 

ANSWER

i) Forms of persuasive precedent:

• Decisions in lower courts.
• Obiter dicta (other words).
• Decisions in courts from other countries. / Jurisdiction
• A dissenting judgement: Is not binding but may be followed by lower courts.
• Decisions from courts of similar ranks

 

ii) Contents of a judicial precedent:

• Names of the parties.
• The court.
• The gist of the oral or written submissions.
• The facts.
• Reasons for the decision (ratio decidendi).
• Obiter dicta.
• Date when the judgement is delivered.
• Signature of the judge or magistrate.
• The determination made.

 

QUESTION 17

November 2020 Question Two A

(i) Highlight six similarities between law and morality    (6 marks)

(ii) Identify four ways in which law might be classified.   (4 marks)

 

ANSWER

i) Similarities between law and morality:

1. Law is subject to and cannot contradict moral principles for example don kill.
2. Both stem from and are directed by the same source that. is practice reason or prudence.
3. Law is a subset of morality.
4. Both govern how we behave towards others.
5. Both are a collective judgments about what is right and wrong.
6. Violation of law and morality warrants enforcement through sanctions.
7. Both are related in the sense that laws are the moral rules which the society has agreed to live by.

 

ii) Ways in which law might be classified

1. Civil law vs. criminal law: Civil law deals with disputes between individuals or organizations, while criminal law deals with offenses against the state.
2. Substantive law vs. procedural law: Substantive law defines the rights and obligations of individuals and organizations, while procedural law sets out the rules for how those rights and obligations are enforced.
3. Public law vs. private law: Public law deals with the relationship between the individual and the state, while private law deals with the relationship between individuals and organizations.
4. Written law vs. unwritten law: Written law is law that is codified in statutes or constitutions, while unwritten law is law that is derived from custom or tradition.

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