TOPIC 1
INTRODUCTION TO LAW
1.1 Meaning of law
According to Salmond, law consists of a body of principles recognised and applied by the state in the administration of justice. Law has also been defined as a collection of binding rules of human conduct prescribed by human beings for obedience of human.
1.2 Purposes or Functions of Law
(i) Rules of law facilitate administration of justice. It is an instrument used by human beings to achieve justice.
(ii) Law assists in the maintenance of peace and order. Law promotes peaceful co-existence, that is, prevents anarchy.
(iii) Law promotes good governance.
(iv) Law is a standard setting and control mechanism.
(v) Provision of legal remedies, protection of rights and duties.
1.3 Types and Classification of Law
Rules of law may be classified as:
- Written and unwritten
- National and International
- Public and Private
- Substantive and Procedural
- Criminal and Civil
Written Law
These are rules of law that have been reduced into a written form. They are embodied in a formal document for example The Constitution of Kenya, laws made by parliament (statutes). Such laws prevail over unwritten Law.
Unwritten Law
These are rules of law that have not been reduced into written form. They are not embodied in any single document for example African Customary Law, Islamic Law, Hindu Law, Common Law, and Equity. Their existence must be proved.
National or Municipal Law
These are rules of law operational within the boundaries of a country. It regulates the relation between citizens and between citizens and the state. It is based on Acts of Parliament, customary and religious practices of the people.
International Law
It is a body of rules that regulates relations between countries/states and other international persons eg United Nations. It is based on international agreements of treaties and customary practices of states and general principles.
Public Law
It consists of those branches of law in which the state has an interest as the sovereign eg criminal law, constitutional law, administrative law. Public law is concerned with the constitution and functions of the various organs of government including local authorities, their relations with each other and with the citizens. Public law asserts state sovereignty/power.
Private law
It consists of those fields or branches of law in which the state has no direct interest as the sovereign eg law of contracts, law of tout, law of property, law of succession. Private law is concerned with day to day transactions of legal relationships between persons. It defines the rights and duties of parties.
Substantive Law
It is concerned with the rules themselves as opposed to the procedure on how to apply them. It defines the rights and duties of parties and provides remedies when those rights are violated e.g. law of contract, negligence, and defamation. It defines offences and prescribes punishment.
Procedural Law
It consists of the steps or guiding principles or rules of practice to be complied with or followed in the administration of justice or in the application of substantive law. e.g. Criminal Procedure code Cap 75
Criminal Law
Criminal law has been defined as the law of crimes. A crime has been defined as an act committed or in violation of public law eg murder, manslaughter, robbery, burglary, rape, stealing, and theft. All crimes or offences in Kenya are created by parliament through statutes. Suspects are arrested by the state through the police. However, individuals have the liberty to arrest suspects. Offences are generally prosecuted by the state through the office of the Attorney General.
Civil Law
Civil law is concerned with violations of private rights in their individual or corporate capacity eg breach of contract, negligence, defamation, nuisance, passing off trespass to the person or goods.
If a person’s private rights are violated, the person has a cause of action. Causes of action are recognized by statutes and by the common law. The person whose rights have been allegedly violated sues the alleged wrong doer. Hence civil cases are styled as Plaintiff v Defendant. It is his duty of the plaintiff to adduce evidence to prove his case the burden of proof lies on the plaintiff.
1.4 Sources of Kenyan law
A source of law is the origin of the rule, which constitutes a law, or legal principle. The phrase `sources of Kenya law’ therefore means the origin of the legal rules which constitute the law of Kenya.
- The constitution
The Kenyan constitution is a formal document which contains a comprehensive frame-work of rules and principles through which a state operates.
- Legislation (Act of parliament/Statutes)
These are laws passed by the National Assembly. They must be published in the Kenya Gazette before coming in operation. A statute comes into operation either on the date of publication in the Kenya Gazette or on such other dates as may be signified by the minister by a notice in the Kenya Gazette. All statutes enacted by the parliament of Kenya must contain the words ‘Enacted by the parliament of Kenya’. An Act of parliament begins as a bill, which is the draft of the Law the parliament intends to make.’. A bill May be:
(i) A Government Bill, if it is presented to Parliament by the Government with a view to its becoming a law if approved by Parliament.
(ii) A Private Members Bill, if it is presented to Parliament by some members, in a private capacity and not on behalf of the Government.
- Delegated Legislation
Although the constitution rests the legislative power of the public in parliament, parliament delegates its legislative power to other persons and bodies. Delegated legislation is also referred to as subsidiary/subordinate legislation and is the law made by parliament indirectly. e.g.
- Local authorities-make by-law are applicable within their administrative area.
- Government ministries, professional bodies and others make rules, orders, regulations, notices e.t.c.
- Statutes of general application
Kenyan law does not define the phrase ‘statutes of general application’ However, the phrase is used to describe certain statutes enacted by the UK parliament to regulate the inhabitants of UK generally. These statutes are recognised as a source of law of Kenya by section 3(1) of the judicature Act. However, their application is restricted in that they can only be relied upon:
- In the absence of an Act of parliament
- If consistent with the provisions of the Constitution.
iii. If the circumstances of Kenya and its inhabitants permit.
- Case law/Judicial precedent
These are laws made the judges. Judges make law when they formulate principles or propositions where none existed or in doubtful situations, which are relied upon as law in subsequent similar case.
- Common law
Common law means law that was administered in the whole of England. This is different from statutory law/statutes of general application. Common law can be applied where and only when our Kenyan courts find them compatible with the Kenyan situation.
- Equity
Equity was developed to supplement, not to supplant the common law. It was developed as a modification to the common law, hence it is described as a ‘gloss on the common law’. In the ordinary sense, equity means fairness, justice, morality, fairplay, equality e.t.c. But in legal sense equity is a branch of law which, before the judicature Act of 1873 came in force, was applied and administered by the court of chancery (was a court of equity in England developed to eliminate the inequity of the common law).In the technical sense equity refers to a body of rules and some authors have defined equity as that which is not the common law.
- Subsidiary sources
These are sources of law which regulate certain categories of people in Kenya in relation to certain matters and include: Islamic law, Hindu law and African customary law.
- Islamic law-It is based on the Muslim holy book, the Quran and the teaching of prophet Mohammed contained in his says Known has Hadith. It is recognised as a source of law by section 66(5) of the constitution and section 5 of the Kadhi’s Court and only applies in the determination of civil cases relating t marriage, divorce, succession or personal status in preceding in which all parties profess Muslim faith.
- Hindu law-it is based on the Hindu faith and philosophy. It is a subsidiary source of law of Kenya. it is recognised as a source of law by the Hindu marriage and divorce Act and the Hindu succession Act. It only applies in the determination of civil cases relating to marriage, divorce succession or personal status in proceeding in which all parties profess Hindu faith.
- Africa Customary Law-It is base on the customs and practices of the various ethnic groups in Kenya. A custom embodies a principle of utility or justice.
