Supremacy of the constitution Notes

Supremacy of the constitution

It is a constitutional concept which emphasizes on political and economic stability through
governance based on the law of land. It identifies the following;
Every accused person must be given reasonable opportunity to know the allegations and
charges preferred against him
and to prepare and present his best defense through legal
representation of choice.

Where the accused is found guilty he must be punished in accordance of the law but if
innocent he must be acquitted.

Meanwhile he remains innocent until proven guilty.
There must exist equality for all and equal protection to all under similar circumstances
before the law i.e every person shall be subject to the law of ht land without

The law applicable within the state must be that which was made by citizens basing on
their voluntary wishes ie it must be constitutional therefore the rule of law simply
emphasizes on equality and justice for all.
Factors that undermine the rule of law

i. Lack of application of separation of powers
ii. Existence of an inefficient legislature
iii. Existence of an unqualified and corrupted judicial officers
iv. Poor legislation within a state
v. Lack of patriotism among the citizens
vi. Existence of strong and deeply rooted political or tribal affiliations.

The significance of the rule of law
– It enables government and citizens to respect the individual fundamental of rights
and freedoms and to reduce impunity.
– It facilitates the smooth running of government affairs
– It enhances economic growth within the state
– It enhances political stability and democracy

Principles of natural justice
These are a set of three ancient rules developed under common law to enhance justice
and fairness in the hearing and determination of legal disputes. They are;
No man shall be condemned unheard- it emphasizes that every accused person shall be
given an opportunity to know the allegations against him and shall prepare and present his
best defense through a fair and impartial tribunal. The rule protects the presumption of
innocence and further emphasizes that the accused shall be given an opportunity to know
the party prosecuting him and confront such person through legal means. It is for this
reason that the accused shall be entitled to the right of being physically present in court
during all proceedings of his case.

He who hears the parties present their evidence should be the one to give final judgement
ie the judge or magistrate must retain possession and control of his case to its final legal

It is also expected that the decision made by the presiding officer shall be that based on
his own discovery while handling the case and not dictation from 3
rd parties.
One cannot be judged in his own cause ie the party prosecuting or complaining must
remain separate and independent from the one who will hear and pass judgement.

Fundamental rights and freedoms – refer to the basic human rights and freedoms
guaranteed to all by law. The rights and freedoms are also know as the Bill of right and in
Kenya they are contained in chapter 5 of the constitution. Even though they are
guaranteed to all without discrimination their application is not absolute because they
have exceptions and limitations. They include;

Right to life
Fair trial
Freedom of conscience, association and assembly
Protection from slavery
False labour
Deprivation of property
Exceptions to the r ight to l ife
Justified euthanasia – mercy killings
For the purpose of suppressing a riot, insurrection or muting.
If he does as a result of a lawful act of war
In order to prevent the commission by that person of a criminal offence.
For the defense of any person from violence or for defense of property.

An execution of the sentence of a court in respect of a criminal offence under the law of
Kenya which has been convicted.
In order to effect a lawful arrest or to prevent the escape of a person lawfully demanded.
When the law shall take away right to liberty
Legally the term liberty refers to all the fundamental rights and freedoms apart from the
right to life.
Personal liberty then refers to the right and freedom to move while enjoying other rights
and freedoms.

It can be lawfully deprived under the following;
Under valid court order for imprisonment
Where the accused is unable to post bail after being charged with a criminal offense.
The accused is charged with having committed a capital offense and the case is in
A suspect is in police custody for purposes of assisting with investigations and his
detention is still within the statutory period.
Where a valid curfew order has been proclaimed by the state.
A valid quarantine order has been proclaimed by the relevant state agency.
Where an alien does not possesses valid travelling documents or he is simply regarded
undesirable by the state.

A person is within an area legally designated as a restricted zone eg military barracks,
state lodges crime scene etc
Under the mental treatment act where a person is detained on suspicion of being mentally
unstable so that he can receive treatment or protection (asylums)
Where minors are detained by the relevant government authorities to protect them from
harm or mistreatment.
Under any other statutory authority that is justified eg where the police enforce traffic
Purposes for which proper ty can be compulsor y acquired without r ight of proper ty
being infringed
Under a valid court order
Where a person failed to pay up a debt ie where property distrained (distress)
Under statutory authority eg where KRA impounds goods for non- payment of duty.
In the interest of the state eg during declaration of war

 Where property is contraband or counterfeit
 For routine inspection as required by law eg by KEBS
 Where property is taken as court exhibit
 Where the owner of possessor has failed to comply with the required by laws and
regulations eg parking fees – non payment of

Animals are taken as distress damage feasant
Property is taken as escheat to the state ie where it does not have any legal owner
in existence
 Animals are detained because they are rogue or unattended.
Identify instances where a person may be lawfully subjected to forced labour
Under a void court order for imprisonment
A court order for community service
 Under the state of emergency eg during declaration of war
Under statutory authority
Under necessity


Reasonable foreseeability
Principle under law of evidence and applied alongside element of negligence as a test to
confirmliability for the wrongdoer. It emphasizes that it is not sufficient for the three
basic elements of negligence to exist in order for a person to be liable.
It must also be confirmed that such liable persons knew or ought to have known that his
acts/omissions were likely to result into injury. This is the forseability test and the
plaintiff must pass it.
Eggshell skull
This is a principle under the law of negligence and it is also popularly known as the “ thin
skin skull” it is applied by the plaintiff to protect him against the defendant who has
injured because he was exceptionally weak. The law does not admit such excuse and it
instead emphasizes that the wrong doer must take his victims he found him.
Concerns negligence ie breach of the legal duty of care which results to injury. Peter ole
yang failed in his duty of care towards kagio who was a lawful road user and this result
into injury. Peter failed to foresee the likelihood of an accident arising as he drove the
vehicle down the valley. He sought to have driven at a controllable pace, its not upon
kagio to explain when and how the accident occurred because his obligation to prove
negligence will be relieved by the principle of res ispa ie that which caused harm was
controlled by Peter.
The accident could not have occurred without negligence
There was no explanation as to why and how it occurred.
Negotiable instruments


 Duties of parties
 Plus definition
Define negotiable instruments and state the basic characteristics
It is a written document which represents money for the value of which it is transferrable
by delivery.

Basic characteristics
Easy negotiability – property in the instrument passes from the person to another
by mere delivery.
Title of holder free from all defects- whoever takes the instrument in good faith
and for value ie holder in due course shall get it free from all defects in the
transferors defects.

 Recovery- holder in due course can sue upon the instrument in his own name for
recovery of the amount.
 Presumptions- every negotiable instrument shall raise the full presumption
 That the instrument was made, drawn or accepted for consideration
That it was made or drawn on the date appearing on its face
That it was transferred before maturity date
That the tenor (original appearance) for the instrument is correct and deliberate.
Duties of parties

Banker Customer (a/c holder)
Duty of care
Duty to honour cheques
Duty not to honour without authority
Duty to maintain confidentiality
Duty of care against alterations ie
Ensure that words and figures are clear
and deliberate
Avoid blank endorsements and blank
Monitor cash movements
Maintain confidentiality

An occupier is the person in control of the premises –occupiers definition
Main provisions in relation to liability of a person visiting premises
Advice to an occupier whose employee, window cleaner was injured when cleaning. The
employee is automatically a lawful user hence he must be protected under the occupiers
liability act.

As the employee was injured in the course of duty it is upon the employer to compensate.
It must be clear that the employee was not in any way negligent or was it contributory
negligence eg by failing to use the safety materials available, The nature of cleaning will
also determine compensation ie whether it required expert skills and the employee is an
expert then he could become an independent contractor and the employer he would be
compensated less his contributory negligence.
General expenses available to the occupier against liability to a trespasser
The injured person is a trespasser and occupiers liability is only towards users.
Assumption of risk
Contributory negligence
Private defense
Abdalla and his warning of slippery floor
Abdalla is the occupier because he owns the house and his liability is towards lawful
users. Even though such liability is reduced when the occupier places a warning it was
insufficient and placed far away from the actual danger. Abdalla failed in his duty of care
because he should have foreseen the likelihood of a person forgetting about the warning
sign. Makanyanga qualifies as a lawful user if at all he was a student attending classes in
that premises unfortunately he is liable in contributing negligence because he was in a
hurry and he failed to foresee an accident can arise upon a person rushing within the

premises. It must be clear that whatever caused the floor to be slippery was brought
about by Abdalla or his employees. If the school was controlled by a particular tenant and
the injury occurred within the school premises the school management would be liable and
not Abdalla.

Principle in the rule in Rylands vs Fletcher
It is the principle of strict liability
Where a person brings onto his premises anything which is dangerous and it is not
naturally supposed to be there he does so at his own risk and shall be held liable if the
thing escapes fromthe premises and causes injury outside.
Jambazi sneaking to steal a radio cassette then falls into a pit
(Occupiers liability)
Cassman is the occupier and he owes the duty of care to all lawful users. Such lawful
users do not include a trespasser where the occupier knows that there is some danger on
the premise he has an obligation to ensure that he places a warning sign. Where the
injured person took up the risk by attempting to do that which is unlawful he automatically
becomes a trespasser and assumes the risk. Jambazi was a trespasser hence he cannot
legally claim compensation. The pit had not been dug as a trap for trespassers and for this
reason Cassman had no obligation to place a warning sign to the trespassers but only to
lawful users. Jambazi should not expect compensation but should be prosecuted for
Causing unlawful harm to the person or his property.
Defenses available to a person sued in an action brought against him under this rule.
Trespass is the causing of unlawful harm to the person or property. Its defenses will be
determined by the kinds of trespass to the person ie assault battery or false imprisonment.

The general defenses are:
Mistake in good faith
 Statutory authority
 Private defense
 Inevitable accident
 Volentinon –fit-assumption of risk
 Legitimate/ parental correction
 Sudden provocation
The torts in this case are as follows;

When the stone misses target the offense committed is trespass to the person and
particular assault because there was no physical contact but it was unfriendly. The
offense may be excused under sudden provocation.
The fight between the sons will greatly be determined by their age and sanity of mind ie if
they are mature enough to understand the consequences of their behavior the fight will
amount to affray and causing a breach of the peace. They will either be fined or
imprisoned for short termor both. If they are infants unable to understand consequences
of their actions their parents/guardians shall be held liable.

Conversion and nuisance
Nuisance is anything done to hurt or annoy another person in relation to his property.

Public nuisance –causes common injury, danger
Private nuisance
One cannot sue in public nuisance unless he proves
That there is a particular injury to him beyond what the rest of the public is suffering.
That the injury is direct and not consequential.
That the injury is substantial in nature
Case: solteau vs De held
– Abatement
– Damages
– Injuction
It is an act of willful interference, without lawful justification with any chattel in a manner
with the right of another such that other is deprived of the use and possession of it.

By taking

By sale
By parting with goods
By keeping
By destruction
Defenses of conversation
Stoppage in transit
Market overt
Possession by innocent party
Shall be liable for trespass (encroachment). It may also amount to private nuisance or
obstruction of use of F’s property. F has a right to cut down the branches but only after
giving G warning and a notice for a reasonable time. Where F fails to warn G he will be
liable for trespass in particular maliciously damage.

Namweya & Nabayi vs poshomill next to Nabayi’s house
The question concerns public nuisance but Nabayi can sue.
This is public nuisance because the machine is in a residential area hence other people
are suffering. A person cannot sue under such tort. However Nabayi is in position to take
action because;

She suffered beyond what the rest of the public was suffering.
The injury was direct and not consequential
The injury was substantial in nature
She can claim damages and at the same time apply for injunction order to stop her
neighbor from undertaking such business within the residential area.

Namwega may apply the defense of prescription ie claiming that the business has been
carried out in the locality for a longtime without any complaint. She can also claim
triviality that the noise has not occurred for a long period of time or inevitable accident.


Character assassination –defamation
 Faisity of statement
Statement must be defamatory
Clear reference to the plaintiff
 It must be published –presence of some witness

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