*DISCLAIMER*
The
notes below are adapted from the Kenyatta University Teaching module
and the students are adviced to take keen notice of the various legal
and judicial reforms that might have been ocassioned since the module
was adapted. the laws and statutes might also have changed or been
repealed and the students are to be wary and consult the various
statutes reffered to herein
Legal
Systems:
There
is no one uniform legal system the world over.
Law is based on society, the values, attitudes and customs will
determine what legal systems they have in place.
Major
legal systems in the world:
1. ROMANO/GERMANIC
SYSTEM
Codification
of law i.e. statutes or written laws constitute the predominant formal source
of law in this system. This system is
adopted in France, Germany Netherlands and most of continental Europe or civil law jurisdictions. There is usually no emphasis on case law.
2. COMMON
LAW SYSTEM
This
is primarily characterised by the predominant position occupied by case law or
judicial precedence.
3. SOCIALIST
OR CAPITALIST SYSTEM
This
system is uniquely characterised by welfarism and a lot of emphasis is placed
on labour laws and social welfare laws.
4. RELIGIOUS
LEGAL SYSTEMS:
For
example Islamic or Sharia Law which is in place in Islamic Republic of Iran, Nigeria and Saudi Arabia
5. INQUISITORIAL
VERSUS ADVERSARIAL (based on procedure)
In
the inquisitorial systems the courts play a key role in inquiring the conduct
of cases and are usually involved in for example summoning of witnesses,
demanding particular evidence etc. while
in the adversarial system the presiding judge only acts as an umpire and is not
involved in the presentation of the case.
In Kenya we have
judicial and quasi judicial systems. The
quasi judicial systems play and adjudicative roles i.e. Commissions of inquiry
and tribunals, administrators
SOURCES OF LAW
Kenyan case
1. SPECIFIED ACTS OF THE UK PARLIAMENT
Under
Part I of the Schedule to the Judicature Act Cap 8 Laws of Kenya, the following
British Statutes are applicable in Kenya;
(i)
Admiralty
Offences (Colonial) Act of 1849;
(ii)
The
Evidence Act (Sections 7 and 11 thereof)
(iii)
Foreign
Tribunals Evidence Act of 1856
(iv)
Evidence
by Commission Act of 1859
(v)
British
Law Ascertainment Act 1859
(vi)
Admiralty
Offences (Colonial) Act of 1860
(vii)
Foreign
Law Ascertainment Act of 1861
(viii)
Conveyancing
(Scotland)
Act of 1874 specifically S. 51 thereof
(ix)
Evidence
by commission Act of 1885.
Under
Part II of Schedule to the Judicature Act the President shall replace the
Governor and a Magistrate holding a subordinate Court of the 1st
Class shall replace a Magistrate of the Justice of Peace.
2. STATUTES OF GENERAL APPLICATION AS AT 12TH AUGUST 1897
This
is contained in Section 3 of the Interpretation and General Provisions Act Cap
2 of the Laws of Kenya. The expression
“Statutes of General Application” is not specifically defined in the Judicature
Act, Cap 2 or in any other piece of legislation. However, Kenya Courts have over the years
accepted several UK Statutes as statutes of general application and applied
them in determining certain cases. Three
basic criteria must be satisfied in order for a UK Act to be received and
applied as a statute of general application:
(a)
It
must have been enforced in the UK
on the 12th day of August 1897;
(b)
It
must have been applicable generally in the UK as at that date i.e. it must not
have been a statute applicable only to a section of the UK or only to a section
of the population;
(c)
The
Statute must be suitable for the circumstances of Kenya and the inhabitants.
One
Professor Allot in an article entitled “New
Essays in African Law” has outlined a number of factors to be considered
before UK Legislation can qualify as a statute of general application. These are
(i)
The
statute must be a government Act of the English legislature as distinguished
from a local or private Act;
(ii)
The
statute must have been in force in England at the specified reception
date;
(iii)
The
statute must be suitable for general application outside England;
(iv)
The
Courts of the particular country concerned must rule on it;
(v)
When
there is a local enactment which is inconsistent with the English statute then
the local legislation prevails.
Some
of the statutes of general application applied in Kenya include
1.
Married
Women’s Property Act of 1882 (see case
of I v I) a 1971 case reported in EA law reports page 278;
2.
Infants
Relief Act of 1874.
3. WRITTEN LAWS
These
include
(a)
Indian
Legislations which were imported into Kenya by the British Colonial
Authorities; however these have all been
repealed with the exception of the ITPA;
(b)
Delegated
Legislation these have the following advantages
(i)
Parliament
does not have the time to legislate on all issues;
(ii)
They
are speedy to enact and are therefore suitable for emergency intervention
(iii)
They
are flexible or less rigid than Acts of Parliament and therefore they are easy
to amend or appeal;
(iv)
Parliament
will not usually have the requisite technical capacity.
However there are disadvantages to delegated legislation
(a)
lack
of adequate parliamentary control;
(b)
Lack
of adequate Judicial control;
(c)
They
are undemocratic as they are not made by democratically elected persons;
(d)
Too
much delegated legislation contributes to uncertainty in the law;
(e)
There
is the danger of sub-delegation.
With relation to delegated legislation, there are issues of
ultra vires which have to be appreciated:
Substantive ultra vires i.e. the authority making the delegated
legislation exceeds the powers granted by parliament; and Procedural ultra
vires i.e where the authority making the delegated legislation contravenes any
mandatory procedure set out in the parent statute. Only ultra vires delegated legislation will
be amenable for quashing by courts of law.
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