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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

 

 

PART A

 

 PAST PAPERS QUESTIONS

 

 

 

TOPIC 1

 

NATURE, PURPOSE AND CLASSIFICATION OF LAW

 

QUESTION 1

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)

 

QUESTION 2

December 2022 Question Three C

Discuss FIVE types of precedents.            (10 marks)

 

QUESTION 3

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)

 

QUESTION 4

August 2022 Question Six C

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

 

QUESTION 5

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)

 

QUESTION 6

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)

 

QUESTION 7

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)

 

QUESTION 8

August 2021 Question One A and B

1. 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)

 

QUESTION 9

May 2021 Question one A

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

 

QUESTION 10

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)

 

QUESTION 11

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)

 

QUESTION 12

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)

 

QUESTION 13

November 2020 Question Four A

Describe the requirements that an administrative body must meet in making an administrative decision in order to avoid a review of its decision by the courts.   (6 marks)

QUESTION 14

November 2019 Question One A

Outline four ways through which the Supremacy of the Constitution is manifested. (4 marks)

Identify eight sources of law in your country.     (8 marks)

 

QUESTION 15

November 2019 Question Four A

In the context of classification of law, state:

• Four modes of sentencing that a court might impose on an offender. (4 marks)
• Four modes of judgement that a plaintiff might be awarded.         (4 marks)

 

QUESTION 16

May 2019 Question Two B and C

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

c) Explain three reasons why Parliament delegates law making powers. (6 marks)

 

QUESTION 17

May 2019 Question Seven D

List four examples of law which fall under criminal law.    (4 marks)

 

QUESTION 18

November 2018 Question One A and B

(a) Outline six properties of law.      (6 marks)

(b) In relation to the sources of law:

(i) Distinguish between an “amendment” and a “repeal” of a law.   (4 marks)

(ii) Identify four examples of persuasive precedents.         (4 marks)

 

QUESTION 19

November 2018 Question Two A and B

(a) Explain the meaning of the term “written law”.       (4 marks)

(b) The legislative power of parliament is exercisable through bills passed by the National Assembly.

With reference to the above statement, explain three types of bills that might be presented to parliament in your country.         (6 marks)

 

QUESTION 20

May 2018 Question One A

With specific reference to sources of law:

(i) Explain three advantages of an unwritten constitution over a written one.    (6 marks)

(ii) Distinguish between “obiter dicta” and “ratio decidendi”.          (4 marks)

 

 

QUESTION 21

May 2018 Question Six D

Identify four branches of civil law.       (4 marks)

 

QUESTION 22

November 2017 Question Five A

• List three functions of international treaties.          (3 marks)
• Outline five sources of international law.           (5 marks)

 

QUESTION 23

November 2017 Question Seven C

Highlight six reasons why the law is important in commercial transactions.     (6 marks)

 

QUESTION 24

May 2017 Question Three B

Describe four purposes of law.           (4 marks)

 

QUESTION 25

May 2017 Question Five C and D

Highlight three disadvantages of case law as a source of law.      (6 marks)

During legislation, a bill might either undergo assent or referral. Summarise the process of Presidential assent. (4 marks)

 

QUESTION 26

November 2016 Question Three B and C

b) Explain three advantages of statutes as a source of law.       (6 marks)

c) Distinguish between “civil law” and “criminal law” on the basis of the following aspects:

(i) The parties.           (4 marks)

(ii) The burden of proof.        (2 marks)

 

QUESTION 27

November 2016 Question Five C

Describe four roles of the Attorney General in your country.         (8 marks)

 

QUESTION 28

May 2016 Question One A

In relation to the sources of law:

• Explain the meaning of the term “common law”.    (4 marks)
• State four characteristics that a custom under African customary law should satisfy to be enforceable.  (4 marks)
• Describe two types of judicial precedents.     (4 marks)

 

QUESTION 29

May 2016 Question Six A

Explain five rules that govern distribution of losses and assets upon dissolution of a partnership.       (10 marks)

 

QUESTION 30

May 2016 Question Seven B

Explain the differences between “criminal law” and “civil law”.       (6 marks)

 

QUESTION 31

November 2015 Question One A and B

a) Explain five main branches of civil law. (10 marks)

b) Justify the need for delegated legislation. (10 marks)

 

QUESTION 32

Pilot paper 2015 Question One A and B

a) Explain three branches of public law.               (6 marks)

b) Describe the procedure to be followed when the President declines to assent to a bill passed by parliament.       (8 marks)

 

PART B:

 

  SUGGESTED

ANSWERS AND SOLUTION

 

 

 

TOPIC 1

 

NATURE, PURPOSE AND CLASSIFICATION OF LAW

 

 QUESTION 1

December 2022 Question Two B and C

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.

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(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 2

December 2022 Question Three C

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 3

August 2022 Question One

(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

 

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