| Stage 1 II |
Legal terminology 1 st publication 1 st reading |
Particulars A bill must first be published in the Kenya Gazette as a legal notice and 1 4days must lapse before it is presented to the house for debate. The leader of government business may apply to the speaker through a motion for the reduction of 1 4days to any period less than that upon convincing the house the urgency of the matter. The main purpose f this stage is to create public awareness on the fact that such bill will soon be the subject parliamentary debate and the general public can therefore voice their sentiments. Public opinion is expected to influence the mood of MPs and show them the direction the debate should take. Legally it is then regarded that the general public has participated in the law making process. The stage is also aimed at legalising the entire parliamentary process and to reduce instances where some MPs may deliberately sneak bills into the house for debate and catch their colleagues ill prepared This is another formality stage. The bill is introduced on the floor of the house for the 1 st time by the clerk of the national assembly who simply reads its title. The purpose of the stage is to create awareness among MPs to the fact that the bill which had been published is now within the house ready to commence debate from the date to be set by members. They should therefore prepare for attendance. Depending on how urgent the matter is MPs shall set the date for commencement of |
| III | 2nd reading | debate for the near future or at times the same day. This is the most important parliamentary stage because it is not only determines the success or failure of the bill but it also the stage where MPs shall get to know the exact content of the bill for the 1 st time. The sponsor is given ample time to rise before the house and explain the content and importance of his bill with the sole objective of convincing fellow MPs to rally behind him and undertake a successful debate for the bill. Upon completing his part an interested MP shall rise before the house to 2nd the motion and the floor will then be opened for debate by all interested MPs. It is then the prerogative of the speaker to decide at what point in time the debate shall come to an end where after the speaker shall call the house to order and divide. it is common practice that voting in the National Assembly shall be conducted by accramation but depending on how contested the matter is, the speaker may deem it prudent to order for voting by the ballot if successful the bill shall move to the next stage, otherwise its failure will automatically require that it be withdrawn from the floor of the house and at least 6 months lapse before it is returned for fresh debate. The rule regarding voting in the national assembly identifies the following (a) Quorum of the National Assembly shall remain 30 MPs physically present and voting at the time the quorum bell is rang and the counting taken. Unfortunately there exists a |
| IV V |
Committee stage Report stage |
legal technicality with regard to quorum tin the Kenyan parliament and this is the fact that the speaker shall be deemed legally blind as far as confirmation of quorum is concerned and he cannot by himself raise an objection regarding lack of quorum such matters shall be raised as a point of order by an MP within the house. In order for the speaker to direct confirmation. Secondly MPs are at liberty to move in and out of the house before quorum has been confirmed. (b) Proxy (voting in absentia) proxy shall not be allowed in the national assembly hence an MP shall be physically present inorder to vote. (c) Constitutional bills require 2/3 majority vote or 65% of all the current MPs while ordinary bills shall require a simple majority vote. A bill which has successfully gone through the second reading shall move to the committee stage where by MPs shall appoint a committee to analyze the bill and prepare and present a better draft. The sponsor of the bill automatically becomes a member of the committee and MPs then elect its chair either by acclamations of the ballot depending on how contested the matter is. The committee may be a select committee whereby a specified number of MPs shall be appointed or a committee of the whole house in which case the house shall transform itself into an “ad hoc” committee. The team shall be given a timeframe within which it should conduct its analysis on the bill and report back to the house. The committee presents its findings (report) to the house through the chair and copies are circulated to all MPs. All the necessary |
| VI VII |
Third reading Presidential Assent |
clarifications are made regarding the report where after MPs are given an opportunity to withdraw from the house and undertake their individual research on the report in preparations for the next stage. It is during this recess that committed MPs shall have an opportunity to consult the relevant experts and stakeholders while canvassing lobbying for ideas and support on the motion. This is another important parliamentary stage, members return to the house for a final review on the bill. A debate takes place yet again where after all the necessary amendments shall be made to the bill and a final vote taken on the bill in its final form. If successful parliament will be deemed to have passed the bill and it shall move to the next stage otherwise its failure will have it withdrawn from the floor and the 6months rule shall again apply. Meanwhile the rule regarding voting in the 2nd reading shall also apply at this stage. The constitution provides that a bill passed by parliament shall then move to the president for purposes of re-examination and approval if valid. This requirement is well in accordance with the doctrine of separation of powers, checks and balances in the sense that upon parliament (legislature) having passed the law, such law must move to the present (executive) for purposes of re-examination before assent is given. Should the president give his assent by appending his signature to the bill it shall become law (ie an act of parliament) however, it is not automatic that a bill which has received presidential assent |
| commences application as law immediately thereafter. There are instances where it will have to await further orders from the appropriate minster with regard to its commencement where such instructions have not been expressly provided in the bill of date of assent shall be legally interpreted as the commencement date. An instance of a situation where commencement date was differed is with the law of succession Act CAP 1 60. This statute received assent from the late Kenyatta on 1 3th Nov 1 972 but only commenced application as law on 1 st July 1 981 . The reason for the delay was the fact that the legislators at that time had failed to appreciate the fact that Kenya comprised of many ethnic communities having different cultural backgrounds while at the same time this communities intermarried. It would therefore pose an uphill task to harmonize a law that would cater for marriages across ethnic boundaries. In the event that the president refuses to give his assent the constitution provides that he shall put his legal reasons and suggested recommendations in wiring and hand them over to the AG who shall put his legal reasons and suggested recommendations in writing and hand them over to the AG who shall consult with the president and upon undertaking such consultation the AG shall transform the recommendations into a memorandumin the required manner and present them to the speaker within 1 4days of the presidents refusal the speaker must in turn circulate |
| VIII | Final gazzettment | the memorandumas a bill to all MPs who thereafter move back to the third reading to debate the presidents recommendations and amend their bills as guided. The amended bill shall then be returned to the president for his automatic assent if MPs fail to regard the president’s recommendation as varied. The speaker shall prolong the debate and summon the AG and all other parties incharge of the presidents recommend to address the house. MPs will then vote thereafter. Meanwhile where the AG and the presidents fail to meet the 1 4days deadline parliament shall have authority to instruct the speaker to transform the bill into law. A bill which has received presidential assent must thereafter be published in the Kenya Gazette as a legal notice. This final gazettment legalizes the entire parliamentary process and most importantly it raises the legal presumption that upon the gazettement every person in Kenya is now fully aware of existence of that law. It is on the basis of this presumption that the court of law shall immediately thereafter invoke the principle “ignorance of law is no defence/excuse”. |
Advantages and disadvantages of direct legislation (Acts of Parliament)
1 . Democratic – the process is reasonably democratic because it is legislation by the
people’s representatives having been given equal opportunities to present their
views before the house.
2. Better publicity – the parliamentary process of legislation provides an opportunity
to influence the law making process and it becomes easier for the citizens to know
the existing laws and to maintain them.
3. Proper control- the MPs and president are a good control measure over the passing
of bills into law and there are higher chances that such law will put in mind the
interests of the citizens.
4. Flexibility – direct legislation is easier to understand than indirect legislation
because it is not made by experts who have a tendency of applying technical
terminologies. It also happens that direct legislation contains numerous exceptions
within itself and it is more user friendly.
5. Economical – it enables government to save the extra money which would have
been used under indirect legislation.
6. Legal solutions– the system is based on majority votes and what the majority
decides becomes law which shall in turn provide a legal solution to the existing
problems.
Disadvantages
Executive influence- it increases executive influence and dominance within the state
because majority of the laws shall be based on wishes of the executive as it makes an
effort to remain in power and comfort for the longest time possible eg Kenya was a single
party state due to the wishes of the executive of the day as it struggled to suppress
opposition. Likewise the recent confrontation between the media owners Associations
and government was based on the fact that cabinet intended to suppress the freedom of
expression, right to own property, simply for the sole objective of protecting the interests
of government.
Parliamentary interests- it expresses the wishes and interests of MPs at the expense of
the electorate eg the frequent allocation of huge salaries and allowances by MPs to
themselves while at the same time they resist paying tax like the ordinary citizens clearly
confirms parliamentary dictatorship and greed.
Dilatory process- it is a lengthy process characterized by unnecessary delays originating
from MPs personal differences and greed. It is also unfortunate that a bill which has
received presidential assent may not commence application as law immediately thereafter.
Substandard legislation-most laws under direct legislation are bulky and they contain
numerous mistakes, reason being the fact that majority of MPs shall not be keen on
undertaking constructive debate in parliament and they simply appear in the house in order
to receive their seating allowances and public attention.
Specific acts of parliament of uk and one act of the parliament of india
Among the sources of law in Kenya are those of foreign origin, majority of which are from
the UK because Kenya was a British protectorate.
The specific acts of the parliament of UK are those statues which have been specifically
singled out by name and identified as art of the law in Kenya.
They include the following;
1 . Evidence Act
2. The conveyanising Escotland Act
3. The foreign Tribunals Evidence Act
4. The Admirally offenses Act
5. The disposal of uncollected Goods Act
6. The evidence by Commission Act
7. The British Law Ascertainment Act
8. The Foreign Law ascertainment Act
The single act of the parliament of India also recognized as the source of Law in Kenya is
the Indian transfer of property Act. This statute found its way into the Kenya legal system
by the fact that India also happens to have been a British protectorate having attained
independence in 1 947. The British then decided that all the laws which had succeed in
India could also be applied in subsequent British colonies.
It must be noted that in as much as Kenya has adopted many foreign sources of law, she
remains a sovereign state and she can therefore modify such new laws to suit her
peculiar traditions and values. The foreign resources will not therefore appear in the
same manner they do intheir country of origin.
Statues of general application enforced in England as at 1 2th August 1 897
These are the acts of parliament which were already existing in England as at the above
mentioned date and they were uniformly applied to all English subjects. The date mentioned
is legally known as the reception date and it is interpreted to mean the date when the law
was received and became applicable to the subjects ie the commencement date. Its
significance to Kenya is that it was on this particular day the Kenya (Imperial British East
Africa) officially became a British Protectorate and for this particular reason the laws
which where applying in Britain did also start to apply to Kenya because in the mind of the
English people, Kenya was simply another one of the many provinces of England and the
people of Kenya were therefore regarded as English subjects. The law of the mother
country had to apply to the province.
Statues which came into application in England after the said date shall not automatically
apply to Kenya unless a particular act of the parliament of Kenya recognizes and adopts
such new statues. Meanwhile inorder for a foreign source of law to be recognized as part
of the laws of Kenya, it must pass that conformity test to the Kenya constitution.
Subsidiary legislation (indirect legislation)
The constitution empowers parliament with authority to make direct legislation.
There are instances when parliament is not in session and other occasions when it does
not possess the necessary skills.
It is then empowered by the constitution to delegate its legislative responsibilities to the
executive and the judiciary (through the relevant minister) appoints experts to formulate
policies on the specific matters. This policies are thereafter transformed into law known
as subsidiary legislation, secondary legislation, surbodinate legislation, executive
legislation, administrative legislation, delegated legislation (registration by persons
delegated with Authority).
This system of legislation is actually legislation by the executive armof government and it
does not follow the parliamentary process of transformity bills into laws.
It can only acquire legal validity when made in accordance with the following requirements.
a) Doctrine of “ultra vires”
Ultra vires is a legal term which means beyond the powers or in excess of powers
conferred. Its applied to show that a person or organ has acted in excess of the granted
authority and the legal effect of an ultra transaction is that it automatically becomes null
and void.
Experts under subsidiary legislation can only transact when and in accordance with
authority granted by an act of parliament and the act of parliament and the act of
parliament giving such authority will then be regarded the “parent act’ or the “enabling
Act”.
This is the principle statute which lays down the terms of reference for the experts and
these terms must be respected to the letter. Failure to observe the requirements will
render the entire process and product ultra vires. This is either procedural or substantive
in nature. It becomes procedural when they adopt the wrong procedure in making the
required law and its substantive when they end up making law on matters which are
foreign or abstract to the terms of reference.
b) Principle of Agency
An agency is the relationship existing between the principal and his agent in such a
manner that the agent then legally represents and effects directives of the principal.
One important rule of agency emphasized that an agent cannot subdelegate authority to a
third party without the principals express consent or in an emergency. This is due to the
fact that the agent is already a delegate hence the delegate cannot further delegate”i.e
Delegatus non potest delgare”
In this regard the experts under subsidiary legislation are agents of parliament and they
cannot therefore subdelegate their mandate to 3rd parties.
Where sub delegation arises the product becomes null and void.
c) Ministerial approval
Subsidiary legislation does not receive presidential assent and it is therefore upon the
minister to receive the report fromthe appointments experts and present it to cabinet for
collective examination.
Upon cabinet approving the report, it shall instruct the minister to append his signature
and once he does so the report becomes law.
These procedure is prone to abuse by the executive for purposes of formulating a
popular law especially where cabinet is certain that such proposal is unlikely to receive
the support of parliament.
It is also doubtful whether the exports report is eventually tabled before the entire
cabinet for examination before it is approved because there are instances where some
cabinet ministers, insist that they were not aware of the approval of such report.
Forms of control over subsidiary legislation
Subsidiary legislation does not benefit from the controls imposed through the
parliamentary stages of enacting the law. Only two forms of control exist over this sytem
i.e
– Parliamentary control
– Judicial control
Under parliamentary control, parliament may identify any part of subsidiary legislation that
is deemed contentious (disputed) and table it before the house for re-examination by a
parliamentary select committee. The committee will then report back its findings to
parliament and Mps shall vote on its validity.
Under judicial control, the court of appeal or high court may “suo moto” (by itself) or
through application from a dissatisfied litigant identify any part of subsidiary legislation
that is deemed contentious and upon examination make a ruling regarding its validity.
Unfortunately this two forms of control can only arise after the subsidiary legislation has
received ministerial approved. The controls are therefore quite untimely. It also happens
that their application greatly depends on the caliber of citizens, judicial officers and Mps
ie such persons must be aggressive and patriotic enough to ensure that unfair and
unconstitutional legislation is repealed.
Forms of subsidiary legislation
Subsidiary legislation originates from the executive and it is therefore also known as
executive or administrative legislation.
This system of law has become popular in modern governance and especially within the
local government authorities.
It is also the preferred mode of making amendments to faulty provisions within an act of
parliament instead of subjecting the entire statute to the lengthy parliamentary process.
It appears in the flowing forms:
By laws proclamations
Orders notices
Ordinances statutory instruments
Rules
Regulations
“Administrative legislation runs against the doctrine of separation of powers even though
it remains a necessary evil in modern governance.”
This statement confirms the fact that administrative legislation is indeed legislation by the
executive whose primary role in government is to enforce the law and not to legislate
because legislation is for parliament. Despite this fact the system is unavoidable because
there are issues which may not be well handled by parliament. It therefore has both
advantages and disadvantages.
Advantages reasons of subsidiary regisation
a. Compensation of lost parliamentary time-it enables the state to formulate new laws
even when parliament is off session. This is beneficial because society is dynamic
and the law making process must be continuous.
b. Technicality of subject matter-the experts make quality laws on mattes which could
not have been handled by parliament.
c. Speed – the process is reasonably fast because the experts do not follow the
parliamentary stages of enacting the law. It is the best solution regarding
formulation of new laws during emergencies. (Subsidiary legislation is at times
referred to as “snap legislation”)
d. Flexibility – the system is not governed by the many rules and orders of the
national assembly and the experts can adopt any approach towards making the law
as long as they respect provisions by the parent Act or Enabling Act.
Disadvantages/l imitations/drawbacks
Despotic and undemocratic- the experts under subsidiary legislation are not
representatives of the people and they are frequently misused by the executive by to
formulate unpopular law. Majority of the laws which receive resistance around the world
fall under subsidiary.
Poor publicity – the system is not open to public scrutiny as is the case which direct
legislation. It becomes difficult for the general public to know the rules and to obey them.
Multiplicity of costs- it is an additional expense to treasury because while the experts
deserve being paid for services rendered Mps continue earning salaries even when they
have not made new laws.
Taxation – most tax and finance regulation are formulated through subsidiary legislation
and his amounts to injustice to the tax payers because regulation on such sensitive
matters should be formulated by the tax payers himself. It also happens that major of
those regarded as “experts” are rarely residents in Kenya.
Poor control- the parliamentary and judicial control are inadequate and untimely and they
greatly depend on the caliber citizens, Mps and judicial officers.
Codification and consolidation of the law
After written rules have been approved and enacted into law they become statutes ie Acts
of Parliament. New written laws must then be clearly distinguished from those existing
and shall be done by giving such new laws a title and numbering them into captions Cap or
chapters.
The process of formally printing written law into a booklet giving it a specific title and
systematically numbering them into captions is legally called codification. The purpose is
to give new law an identity .and to enable the user for such statue to gain accurate
access to the relevant law. Interpretation of this law is enabled because the printed law
becomes the most accurate evidence of what the content of such law is;
Examples
Magistrates Act Cap 1 0
The Judicature Act Cap 8
The Accountant Act Cap 531
The Law of succession Act Cap 1 60
The Hire Purchase Cap 507
The law of contract Act Cap 23
There are instances where several statutes may cover similar matters at a particular
point. It becomes unwise to retain such statutes altogether because they may bring about
contradiction and ambiguity in the content of law. Such may be grouped into a single act
of parliament and in so doing they loose original title and acquire one that unifies them.
The process of formally grouping together similar statutes into a single and is known as
consolidation and the new act of parliament developed become a consolidating act eg
The registered lands act Cap 300
The marriage act Cap 1 50
The companies Act Cap 486
Interpretation of statutes
A statute is an established written law which shall in most cases be an act of parliament.
This definition includes subsidiary legislation.
It is the obligation of the judiciary to interpret the law, identify the status of such law and
eventually prescribe punishment.
Most statutes have interpretation provisions within themselves, however there are many
instances where such interpretation is inadequate, ambiguous or distorted by advent of
time.
It is during such movements that the judiciary shall among other things apply the following
rules in order to interpret the law.
Main presumptions applied by court when interpreting statutes
When interpreting statutes, the court of law shall raise the following legal presumptions.
I. Parliament in its wisdom did not err (make a mistake) when enacting a statute.
| II. | The statute does not run against international law and international convections for which Kenya is a signatory |
III. That the statute does not run against the Kenyan constitution
IV. That the statute does not deny any person his fundamental rights and freedoms
V. That the statute does not impose criminal liability without proof of “mens Rea”
(guilty mind).
| VI. | That upon enactment the statute shall take a prospective effect and not a retrospective effect (ie strict principles of law demand that and enacted law |
applies for wrongs which become offences after an enactment and not those
which offered before enactment.
VII. That the statute does not run against common sense, morally and justice.
VIII. That upon enactment the statute shall not have extra territorial jurisdiction.
IX. That upon enactment where there arises contradiction between provisions of two
or more statutes the latest to be enacted shall prevail (unless the earlier one is a
provision of the Kenya Constitution.
UNWRITTEN SOURCES
The substance of common law and doctrines of equity
This foreign source of law is the highest among the unwritten sources of law in Kenya.
Legally it comprises of two distinct and separate sources of law i.e
Common law
Equity
The two are frequently regarded as one source of law due to their common historical
origin and background as seen hereafter.
a) Common Law
No specific piece of literature can authoritatively confirm the exact content and extent of
common law, but it is undisputed and common law is that part of the unwritten laws of
ancient England whose origins were the customs and traditions of the ancient English
propel and the decisions made through their ancient courts.
It acquired its name “common law” from the fact that it was a system of law common only
to the English people but uncommon to their neighbours eg the Romans
It was practiced through the ancient common law courts and proof of its existence dates
back to the 1 2 century AD when the following common law courts started operations.
a. Courts of the exchequer – it handled revenue claims
b. Court of common pleas– handled civil claims
c. The Kings Bench – handled criminal disputes and it acquired its name from the fact
that the king himself would personally handle some of the disputes especially at the
appellate level. The court was quite unique because it had both original and appellate jurisdiction
d. The admiralty court- handled disputes arising in the high seas and other navigable
waters of the English territory.
e. The probate court– handled succession claims and issues relating of administration
of estates of deceased persons.
The matrimonial causes court
Handled marital disputes and other family disagreements. One general characteristic with
the common law courts listen above was that they all had many inadequacies and
irregularities. Chief among them being the following;
The writ system– a writ was an order issued by the king in his own hand to enable a
complainant present his matter before court. It was equivalent to the present day
summonses (British) or subpoena (us) ie indictment and no court action could commence
without the issuance of this order. Unfortunately it was not easy to gain the king’s
audience and coupled with this fact many present day offenses were by then not
recognized as punishable by law. This unfortunate situation left many genuine
complainants without an opportunity to have their matter heard and determined by court.
Procedural technicalities – the common law system was pegged on observance of all legal
procedures some of which were too technical yet unnecessary. A complainant could easily
loose a good claim simply because he had filed or forgotten to observe all the laid down
procedures to the letter.
Dilatory defenses – the common law system had procedures which were time consuming
and notable among them was a standard defense known as “Essoins” it was applied by a
defendant seeking adjournment of his matter and the court had an obligation to grant this
adjournment without questioning. By this time it had not become apparent within the
common law system that “justice delayed is justice denied” such delays simply frustrated
and discouraged complainant from pursuing their matter through court process.
Inadequate remedies – the common law system lacked sufficient remedial measures and
the worst affected was its civil branch where only existing relevant remedy was financial
compensation known as damages. Unfortunately not all wrongs can be full satiated
through the grant of monetary remedy especially where the wrongs are continuing in
nature eg defamation, trespass and nuisance.
The most appropriate remedy for such offenses would be the awarding of an injunction
order in addition to damages. This order was unknown at common law.
Non-recognition of mortgages- a mortgage is a loan transaction where by a person
borrows money on the strength of security or collateral handed over to the tender and it
is agreed that the borrower (mortgagor) shall redeem his security from the tender
(mortgagee) upon repayment of the loan. The process of getting back ones security is
legally know as “the mortgagor’s equitable right or redemption” this right was unknown at
common law and mortgagors continued to loose their security without legal protection.
Non-recognition of trusteeships- a trusteeship is an arrangement whereby the owner of
property (donor) entrusts it with a manager/administrator (trustee) and it is agreed that
the trustee shall deal honestly in all matters regarding management and trustees
continued to embezzle and misappropriate trust property.
Injustice and corruption – the common law courts were fully controlled by the rich
administrators and property owners to the extent that the ordinary peasant had no chance
of winning a court battle. It became the norm that justice was only for the rich and well
connected
.
b) Equity
It simply means justice or fairness. Inorder to avoid a revolution the king of England
decided to intervene in the court disputes and mitigate the harshness of common law by
handling some of the court cases to this end the English subjects then regarded the king
as ‘fountain of justice’ not being a legal expert the king had to rely on his own conscience
and religious principles of fairness when handling the cases and upon being overburdened
with the court work.
He instructed his most trusted senior officer and confidant known as the lord high
chancellor to take up most of the court cases. This officer also applied the religious
principles of fairness when handling the cases and it later turned out that majority of
citizens preferred to have their court disputes address with by the king or the Lord high
chancellor and not by regular courts.
This then necessitated the lord high chancellor to instruct his junior officers known as
lord chancellors to assist with the court process and as these officers were spread out in
all the provinces of England citizens gained access to their favourable court.
In due course a unique systemof law based on justice and good conscience was developed
in lord chancellors offices known as chanceries and this officer were then transformed
into courts known as courts of chancery and the new law given the name equity.
The 1 st court of chancery is recorded to have been established in England around 1 470 AD
Equity is therefore part of the unwritten laws of England developed by the king and his
chancellor to eradicate the inadequacies occasioned through application of common law.
Both common law and equity go hand in hand but in the event that there arises conflict
between themit has been established that equity shall prevail.
In Kenya the judicature act recognizes “The substance” of common law as a source of law.
This statement is deliberately worded and its legal interpretation is that Kenya only
recognizes the substantive part of common law and not the procedural part which had
many inadequacies and irregularities.
Maxims of Equity
Equity remains on unwritten source of law and all that the court can make reference to in
order to identify the extent of fairness to be granted to a party is the set of maxims of
equity. The maxims include;
1 . Delay defects equity or equity aids the vigilant and not the indolent
2. Equality is equity and equity is equality
3. He who seeks equity must do equity
4. He who comes to equity must come with clean hands
5. Equity suffers no wrong without a remedy
6. Equity looks at the intent rather than as formor equity imputes and intention to
suffer an obligation
7. Equity follows the law
8. Equity sees as done that which ought to have been done.
9. Where there are two or more equities the first in time shall prevail.
Remedies of equity (equitable remedies)
Action of account Rescission
Appointment of receiver specific performance
Declaration tracing
Injunction
Quantummerit
Rectification of document
Distinction between common law and equity
| Common law | Equity |
| It is that part of unwritten laws of England whose origins were the customs and traditions of the ancient English people and their ancient court judgement |
It is the unwritten source of law of England which originated fromthe king and his chancellors basing on conscience and fairness inorder to supplement the inadequacies of common. |
| The rights and remedies are known as legal rights and remedies. |
They are known as equitable rights and remedies. |
| They apply against the world at large ie they are Jus-In-Rem |
Apply against a specific person or group of persons ie they are Jus-In-Personam |
| They are mandatory and will be awarded as matter of right as long as the complainant proves legal injury. |
They are discretionally and the complainant shall loose themif in breach of the maximof equity. |
| Most have been codified and incorporated into statutes of the law of contract, defamation, occupiers liability etc |
It remains an unwritten source of law and all that exists in writing is the set of maximof equity. |
Similarity
a similarity arises between the two sources of law in the sense that they are both
unwritten and fromancient England. Their rights and remedies will in some instances coexist in a particular matter eg in trusteeships, the trustee shall retain equitable rights and
remedies while the beneficiaries possess legal rights and remedies.
c) Judicial Precedent
The constitution empowers the legislative armof government with legislative
responsibilities further to these it authorizes the legislature to delegate such authority to
the executive as and when need arises.
Judicial precedent is so much different fromthe instances mentioned above because it is
not only unwritten law but it is also law made by an organ of government other than the
l egisl atur e and the executive. It is the l aw made by the judiciar y ar m fo gover nment basing
on pr evious cour t judgement. It is also known as case l aw. Judicial pr ecedent is founded
upon an ancient common l aw doctr ine known as “star e Decisis” which simpl y means stand
by the decision.
It was developed in the ancient common l aw cour t to guar antee unifor mity in the
judgement making pr ocess and it was enabl ed by the fact that the cour ts of l aw wer e and
stil l ar e ar r anged in or der of hier ar chy.
On this basis then decision of higher cour ts woul d bind the l ower cour ts. The doctr ine
emphasizes that a judge shal l be bound to fol l ow an al r eady existing cour t judgement if the
facts and cir cumstances in the pr evious case ar e simil ar in pr incipal to those of the
common case and the pr evious case was handl ed by a cour t higher in r ank than the
pr esent court.
For this r eason decisions of the cour t of appeal shal l bind the high cour t and al l
subor dinate cour ts whil e decisions of the high cour t shal l onl y bind the subor dinate
cour ts.
Inor der to successful l y appl y “state decisis” two other pr incipal s must be cl osel y examined
ie
a) ‘Ratio Decidendi’ it means r easoned decisions. One impor tant pr incipl e of l aw
dictates that a judge must give sound l egal r easons for having ar r ived at a
par ticular cour t judgement. This r easons shal l then justify the judgment and
confir m the pr incipl e that “justice must not onl y be done but it must al so be
manifestly seen to have been done”
Ratio Decidendi does ther efor e justify judgement by giving a dissatisfied l itigant an
oppor tunity to chal l enge the decision of the cour t on the basis of the r easons
given in that judgement. Ratio decidendi is binding and author itative and must be
followed by al l l ower cour ts. It is the star e decisis proper .
b) Obiter Dicta (obiter dictum) – it means statements by the way. Inor der for a judge
to make his final decision he wil l cite var ious matter s and l egal author ities some of
which may not be dir ectl y l inked to the main r eason why he decided the case in a
par ticular manner , obiter dicta is a col l ection of al l such statements made in
passing. It is neither binding nor author itative upon any cour t of l aw. It onl y has
per suasive value
.
Types of precedents
Binding and author itative pr ecedency- this is the type which must be fol l owed by al l l ower
courts and it is therefore ratio decidendi.
Persuasive precedent – it is neither binding nor authoritative upon any court and it can be
anyone of the following;
Obiter dicta
Foreign law
Ratio decidendi of courts of similar rank or the very court which set the precedent.
Original precedent – it is established where the judge does not have any existing relevant
precedent to follow because such case has never occurred before. The judge is then
expected to apply his own mind to the case and eventually make a “maiden decision” which
results into original precedent to be followed in future cases.
Distinguishing precedent- judges are expected to be subtle. There are instances where
the judge shall brilliantly avoid following an existing precedent by showing legal
differences between his case and the one already in existence.
Where he effectively does
this he ends up setting distinguishing precedent which must be followed in future cases.
Declaratory precedence – precedence remains and unwritten source of law hence
secondary to the written law. Where the written law is clear on what should be done in a
particular case the judge shall be bound to declare the written law as it is. Likewise where
the case is simple and straight forward the judge shall not spend time searching for
relevant precedent and he will instead declare the written law as it is.
Overruling precedent- to overrule is to cancel. There are instances where the judge may
realize that the precedent is expected to follow was erroneously made. It becomes unwise
and professional negligence for the judge to retain such erroneous decisions because it
will definitely affect future cases. He must therefore overrule the erroneous decision and
set on which is legally sustainable. The new decision becomes overruling precedent.
An erroneous or wrongly made judgement shall be legally known as a ‘per incuriam’
judgement. Such judgement must be overruled at all costs.
Reasons for the error include the following;
a. Where the previous judgement was made without regard to the principles of law.
b. Where it was made without regard to social economic and political changes.
c. Where it was made without regard to provisions of an existing act of parliament
d. Where the judgement was simply biased
e. Where the error was due to professional negligence
f. Where the judgement was made under duress or any form of undue influence.
Advantages of precedent
Certainty – it introduces certainty in the judgement making process and it becomes easy
for a person to predict the final outcome of his case by making reference to their relevant
existing precedent.
Uniformity– introduces uniformity in the judgement making process and reduces double
standards by judges. This then develops faith and obedience to the law and the citizens
become encouraged to refer their matters to the court for redress.
Flexibility – higher courts enjoy flexibility because they have a right to depart from their
earlier decisions. This enables the law to conform to socio-economic and political changes.
Development of the law- the process of distinguishing cases develops new legal principles
to deal with new problems eg it is through application of precedency that the rules of
interpreting statutes were developed.
Disadvantages
Rigidity– lower courts are bound to decisions of higher courts through application of state
decisis. This greatly limits the discretion of such lower courts.
Complexity- some judgements are too technical for ordinary person to understand
especially where the judge has attempted to distinguish between various principles. This
is the main reason why it is not easy to immediately understand and differentiate some of
the rules of interpreting statutes.
Laxity (indolence)– lower courts are not motivated to research and develop new precedent
because they fear that their decisions will be overruled by higher courts.
Parliamentary control – precedent is subject to parliamentary control and a judge cannot
set any precedent contrary to the written law unless such law is amended or repealed.
