Muriuki Muriungi

LEGAL SYSTEMS AND METHODS NOTES

Introduction to Legal system and method

This is a foundational module which provides you with some essential building blocks for the study of
law. Learning about law and legal systems is endlessly fascinating and the material in this module
provides a basis for your understanding of the other modules you will tackle as part of your Bachelor
of Law (LL. B) programme. This module will help you to become familiar with some of the special
vocabulary of the law; it will introduce you to the essential skills of the lawyer – such as how to read
legal cases and statutes (Acts of Parliament); and provide an overview of some of the key institutions
and processes that make up what we understand as the legal system.

1.1 What is law?

You might think this is an easy question to answer, but although our lives and behaviour are regulated
by a complicated system of rules, norms, and conventions, only some of these are defined as ‘law’.
Our first introduction to rules comes from our parents – don’t talk with your mouth full, don’t run up
and down the stairs, don’t shout; and then at school – don’t speak in class, don’t eat in class, do your
homework on time and so on. Other rules are ‘social norms’ or conventions – turn taking in
conversation, covering your mouth when you cough. But the rules that we are concerned with in the
study of law are those that can be enforced by the state. Some rules have the force of law while other
rules or conventions will simply lead to social disapproval. If you break the rule ‘don’t take someone
else’s property’ you may be liable to pay a penalty that will be imposed by the state. If you drive
carelessly and injure someone you may be required to pay them compensation. On the other hand, if
you push to the front of a queue in the supermarket you are likely to be subject to serious social
disapproval, but no formal penalty will be applied. There are significant differences between societies
when it comes to which kinds of behaviour will lead to disapproval and which kinds of behaviour will
lead to a formal penalty being imposed by the state. For example, while adultery is disapproved of in
Kenya it will not lead to formal punishment although it may form grounds for divorce. By contrast, in
Islamic law adultery will lead to a criminal penalty being imposed. There is considerable philosophical
debate about the nature of law and why some rules are enforced by the state and others are not, but
for present purposes a practical answer to the question ‘what is law’ could be given as ‘the rules by
which societies agree to live, which are enforceable by the coercive power of the state’.

1.2 What is law for?

Law performs critical social functions. It has a broad important role in helping to maintain order in
society. When we talk of ‘society’ we are referring to humans living together in relatively peaceful
harmony and law is central to the notion of ‘social order’. The broad or ‘macro’ functions of law are
to maintain public, political, social, economic, international and moral order. So, for example, laws
relating to ownership of property, or laws relating to business transactions support economic activity
by ensuring that commercial transactions are carried out in an orderly way and that rights and duties
are respected and enforceable. Law in this context can also protect weaker parties involved in
commercial transactions to ensure that bargains are fair. The ‘micro’ functions of law are to achieve
more specific social objectives. So, for example, one of the micro functions of law is to define the limits
of acceptable behaviour by specifying action that is so morally reprehensible that it will attract a
criminal penalty – like murder or theft of property. This can be contrasted with behaviour that is
deemed morally wrong but not criminally wrong, such as careless driving that causes damage, and
which will attract a civil penalty rather than a criminal penalty. Another important micro function of
law is to ensure that those in public office do not abuse their power. One of the problems of the many

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functions of law is that sometimes functions can be in conflict. So, for example, the objective of
preserving social order may conflict with the protection of civil liberties or the right to expression. This
conflict occurs when citizens want to take to the streets to demonstrate to express their dissatisfaction
about some issue and the police are concerned that such a demonstration might lead to violent
disorder. Which objective should prevail? Freedom of expression or social order? Similarly, when
governments are facing terrorist threats they must balance the desire to protect society through
enlarging the power of the police and courts against the danger to civil liberties and infringement of
human rights.

1.3 Sources of law

In studying the operation of the legal system, we need to be able to recognise which rules are regarded
as ‘law’ and how important any particular rule is in relation to other rules. In the English legal tradition
the source of a rule is relevant in determining both its significance and whether it might take
precedence over a rule that comes from another source.

In the Kenyan legal system, there are various principal sources of law as detailed in the Judicature Act:

1. The Constitution.
2. Law made by Parliament – referred to as ‘legislation’, ‘statute law’ or ‘Acts of Parliament’. Written
laws that express the will of the legislature.
3. Law decided in the courts – referred to as ‘common law’ or ‘case law’. Decisions of judges in
particular cases applied by other judges in later cases through the process of precedent
(combined common law and equity).
4. Statutes of General Application passed in the UK before 1882.
5. Customary law.

1.4 Different types of legal system

The legal system comprises the law – produced by law-making bodies (legislatures and judiciary) – and
the institutions, processes and personnel that contribute to the operation and enforcement of those
laws. So, for example, we can say that the English legal system comprises: legislation and common
law; courts; judiciary; legal professionals; police; prosecutors; juries; and mechanisms for providing
access to justice. In effect, the legal ‘system’ describes the law and the machinery provided for
adjudication and implementation.

1.4.1 Legal traditions or ‘families’ of legal systems

Around the world there are different traditions in legal systems. As Tetley (1999) explains, a legal
tradition reflects deep-rooted, historical attitudes about the nature of law, about the role of law in
society and about the way law should be made, applied and studied. Two major ‘families’ of legal
systems are common law and civil law systems.

1.4.2 Civil law or continental legal systems

Civil law is the oldest surviving legal tradition in the world. It had its origin in Roman law and later
developed in Continental Europe and around the world. A key distinguishing feature of civil law is that
it is a ‘codified’ system. Jurisdictions with civil law systems, such as France, Germany and Japan, have
comprehensive, continuously updated legal codes that specify all matters capable of being brought
before a court, the applicable procedure and the appropriate punishment for each offence. These
codes distinguish between different categories of law. In a civil law system, the judge’s role is to

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establish the facts of the case and to apply the provisions of the applicable code. Though the judge
often brings the formal charges, investigates the matter, and decides on the case, he or she works
within a framework established by a comprehensive, codified set of laws. The judge’s decision is
consequently less crucial in shaping civil law than the decisions of legislators and legal scholars who
draft and interpret the codes. Some key features of civil law systems are: codified system of law (e.g.
civil code, codes covering corporate law, administrative law, tax law); written constitutions based on
specific codes; only legislative enactments are considered binding for all; little scope for judge-made
law, although judges generally follow precedent; constitutional courts that can nullify laws and the
decisions of which are binding.

1.4.3 Common law systems

The common law legal tradition has its roots in developments in England in the 11th century. In
common law systems, legal principles are to be found in the decisions of judges adjudicating in
individual cases. The common law is usually more detailed than civil law and common law systems
operate on the basis of ‘binding precedent’ so that judges in a particular case must follow the decisions
of judges in earlier similar cases. These precedents are maintained over time through the records of
the courts as well as historically documented in collections of case law known as yearbooks and law
reports. The precedents to be applied in the decision of each new case are determined by the presiding
judge. The common law tradition of England was transported around the world to countries that were
once part of the British Empire. There are common law systems in Australia, USA, Canada, New
Zealand and Kenya– all having connections with England (common law family). Other countries have
a ‘mixed system’ that include some elements of the common law as well as some elements of civil law
– for example parts of Africa, India and parts of the Far East.

Some of the key features of common law systems are: there is not always a written constitution or
codified laws; judicial decisions are binding and decisions of the highest court can only be overturned
by the same court or through legislation; everything is permitted that is not expressly prohibited by
law.

Historical development of the common law

It is possible to date the modern development of the English common law back to the time of William
the Conqueror who invaded England in 1066. Before the Norman Conquest of England in 1066, there
was no unitary, national legal system. The English legal system involved a mass of oral customary rules,
which varied according to region. Each county or shire had its own local court dispensing its own
justice in accordance with local customs that varied from community to community and were
enforced, sometimes in a rather arbitrary fashion, by local lords or landowners. These local courts are
not what we would recognise as courts today. William, as King of England, laid the foundations of the
legal system. He understood that in order to exercise real power over citizens he needed a central
system of justice over which the king had control and that had laws that would be obeyed. He did this
by creating what was called the Curia Regis – King’s Court. It was a court of law but also a royal
household comprising the King and his advisers who were a mixture of powerful militarised
landowners and learned clerics (religious men in holy orders). The King and his court travelled around
the country and citizens would bring their grievances to be considered by the King and his advisers
after which judgment would be given. This activity was the beginning of the common law system.
Probably the most important contributor to the development of the common law was Henry II who
came to the throne in 1154 after a long period of disruption and civil war. Henry took the throne
wanting to regain stability, reform land law and deal with rampant crime. He focused on creating a
single system of justice for the entire country that would be under the control of the king. At this time

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there were only 18 judges available to dispense justice. In 1166 Henry ordered five to remain in
Westminster in London to deal with the cases that he would previously have decided, and the
remaining judges were sent out to travel to different parts of the country. Their responsibility was to
decide grievances, complaints and accusations applying the laws that had been developed by judges
in Westminster. In this way, local laws were replaced by new national laws. Laws that were common
to all – in other words, the common law. In time, the decisions of the judges were written down. As
the decisions of these courts came to be recorded and published, so the practice developed where
past decisions (precedents) would be cited in argument before the courts and would be regarded as
being ‘authority’ for the application of pre-existing legal principles.

Common law courts grew up gradually as offshoots of the authority of the King and, as the very word
‘court’ indicates, these courts of justice were originally a part of the Royal Court. They were not created
by law in order to administer pre-existing laws. They were created, or grew up, in order to solve
pressing practical questions – to dispose of arguments, to solve disputes, and to suppress violence and
theft. As they developed into what we would today recognise as courts of law, they actually created
the law as they went along. Eventually their decisions began to fall into regular and predictable
patterns, people began to take notes of what the judges were deciding, and in due course there
emerged the modern ‘law reports’. (Atiyah, P.S. Law and modern society. (Oxford: Oxford University
Press, 1995))

The contribution of common law to social order: the tranquillity of the state The content of most of
the law at the time that the foundations of the common law were being laid was directed at preventing
bloodshed by recognising rights to property and personal freedom. Until the 12th century, the
vendetta had been an integral part of English life. But the ending of bloody feuds in England roughly
coincided with the establishment of the King’s Courts in the 12th Century. The courts not only
punished criminals, but provided a peaceful means of resolving disputes over land and other property.
The courts offered a service to the public. Instead of solving disputes by violence, a judge would rule
on rights and wrongs and offer a remedy. In the resolution of disputes over land, contracts and debts,
as well as dealing with criminal offences, the courts were supporting social order and the tranquillity
of the state. The ability to ‘resort’ to law is preferable to the ability to ‘resort to violence’ and this is
part of the critical social function of law. As we will see in Chapter 6 and the discussion about the need
for access to justice, some will argue that if citizens are denied access to the courts they will ‘take the
law into their own hands’. Those concerns are similar to the concerns of Henry II some 800 years ago.
The development of equity The word ‘equity’ means fair or just in its wider sense, but its legal meaning
refers to legal rules that were developed by the courts to overcome some of the inflexibility of the
rules and procedures of common law courts. By the 15th century the procedures of the common law
courts had become slow, expensive and very technical. Interestingly, these are problems that people
complain of today as will be discussed in Chapter 6. Despite the development of common law courts
between the 12th and 15th centuries, the King himself continued to be a source of English law. Citizens
petitioned the King to ‘redress their grievances’ which meant pleading with him directly to hear
complaints and provide a remedy. For a time the King dealt with these petitions himself, but as the
work increased he passed them to his senior legal adviser, the Chancellor (who was always a cleric),
as the ‘Keeper of the King’s Conscience’. The King, through his Chancellor, eventually set up a special
court, the Court of Chancery, to deal with these petitions. The Chancellor dealt with these petitions
on the basis of what was morally right. The Chancellor would give or withhold relief, not according to
any precedent, but according to the effect produced upon his own individual sense of right and wrong
by the merits of the particular case before him. In 1474 the Chancellor issued the first decree in his
own name, which began the independence of the Court of Chancery from the King’s Council and the
development of a system of legal principles known as ‘equity’ which was different from the common

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law. Equity created new rights, for example by recognising trusts (somebody holding legal title on
behalf of another ‘beneficiary’) and giving beneficiaries rights against trustees. The common law did
not recognise such a device and regarded the trustees as owners. Equity also created new remedies.
If the Chancellor was convinced that a person had suffered a wrong, the court would grant a remedy
(i.e. they would devise some way to ensure that something was done to put right the wrong that had
been done to the person). In this way, equity created new remedies that were not available in the
common law courts. At common law, the main remedy that a person could obtain was the remedy of
money compensation or damages. However, in equity more flexible remedies were developed such
as specific performance, which is an order telling a party to perform their part of a contract, or
injunction, usually an order to stop a person doing a particular act, like acting in breach of contract (a
prohibitory injunction). In time, however, the procedures of the Court of Chancery became expensive
and it took a long time for cases to be dealt with by a judge and for a decision to be given. By the 19th
century the court was the subject of considerable criticism. It was around this time that the famous
English author Charles Dickens wrote his novel Bleak house which was deeply critical of the procedures
of the Court of Chancery.

This is the Court of Chancery, which has its decaying houses and its blighted lands in every shire, which
has its worn-out lunatic in every madhouse and its dead in every churchyard, which has its ruined suitor
with his slipshod heels and threadbare dress borrowing and begging through the round of every man’s
acquaintance, which gives to monied might the means abundantly of wearying out the right, which so
exhausts finances, patience, courage, hope, so overthrows the brain and breaks the heart, that there
is not an honourable man among its practitioners who would not give – who does not often give – the
warning, ‘Suffer any wrong that can be done you rather than come here!’ (Extract from Chapter 1 of
Bleak house by Charles Dickens).

In 1873, the Common Law Courts and Courts of Equity were combined in the Judicature Acts 1873–
75. All courts now deal with both common law and equitable principles and remedies. Equity has
added new principles to the body of common law and remedies for those who have suffered an
injustice.

1.5 Classification of law

Lawyers have generally classified the law into several broad areas, although this is complicated by the
fact that some of the basic terminology has different meanings depending on the context.

1.5.1 Three different meanings of the term ‘common law’ Common law and statute law: when
common law is contrasted with statute law, common law is referring to the law found in the decisions
of the courts rather than the legal rules contained in Acts of Parliament (statutes).

Common law and equity: in the previous section we described how equity developed as a body of law
reflecting principles of ‘conscience’ and designed to do justice in situations where the common law
was not able to do so. Even though the courts of equity were combined with the common law courts
in the 19th century, there are still two distinct bodies of case law – common law and equity. Modern
courts will refer to certain principles or remedies as equitable, contrasting them with common law
principles and remedies.

Common law and civil law: in this context, the distinction being drawn is between the English legal
system and the family of common law jurisdictions with civil law jurisdictions whose systems are
derived from Roman law – such as Germany, France and Japan.

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1.5.2 Public law and private law

Private law deals with relations between individuals where the state is not directly involved – such as
the enforcement of contracts or ownership of property. Public law, by contrast, deals with the
relationship between citizens and the state; for example, where an individual believes that their
human rights have been infringed by an action of the state. Judicial review is the procedure by which
citizens can seek to challenge the decision, action or failure to act of a public body, such as a
government department or a local authority or other body exercising a public law function. In an
action for judicial review, the judiciary will assess the extent to which a public body or person has
acted within their legal powers. This includes actions of government ministers. See, for example, the
case of R v Lord Chancellor ex p Witham [1997] 2 All ER 779 in which the Divisional Court of the High
Court (Queen’s Bench Division) held that the Lord Chancellor had exceeded his powers (ultra vires) in
removing a provision that citizens on low incomes would be exempt from paying court fees to access
the courts. It was held that the action denied their right to a fair trial. Mr Justice Laws gave the leading
judgment. He said that access to justice at an affordable price was a constitutional right. It was a basic
or fundamental right which could not be revoked unless specifically permitted by Parliament.

1.5.3 Civil law and criminal law

There is also another meaning of ‘civil law’. When dealing with the law within the English legal system,
as opposed to contrasting the English legal system with civil law jurisdictions, civil law can be
contrasted with criminal law. In this context, civil law is a form of private law and involves the
resolution of disputes between citizens or businesses. Criminal law, on the other hand, is an aspect of
public law in which the state will prosecute an individual for behaviour that the state wishes to control
and which is deemed to be morally reprehensible. In criminal law the state prosecutes an individual
in the name of the Crown on behalf of society at large. This is why cases are reported as ‘Regina v …’
which stands for ‘the Queen against …’

Standard of proof: in the English common law system, an important distinction between civil and
criminal law is in the ‘standard of proof’ required for different types of case. The standard of proof
relates to the requirement for the facts of cases to be proved by evidence. How sure is the court that
the evidence proves the facts? In criminal cases, the prosecution is required to prove the case in court
‘beyond reasonable doubt’. This is a demanding standard justified by the fact that the accused is facing
the possibility of a criminal penalty being imposed if found guilty. In civil cases, the standard of proof
is on ‘a balance of probabilities’, a less challenging requirement which means that the court merely
has to be of the view that it is more likely than not that the defendant is liable.

Some major subdivisions of civil law

Contract law: this deals with legally binding agreements between parties. Contracts are used to cover
transactions relating to a wide range of issues such as sale of goods, sale of land, employment
relationships, etc. Key areas of court action relate to breach of contract.

Law of tort: a tort is a civil wrong which causes another person to suffer damage or loss. The law of
tort covers a body of civil obligations, rights and remedies. Where a person has suffered some sort of
personal or financial damage as a result of the wrongful actions of another person they may be liable
under the law of tort to claim financial compensation. Key areas of court action relate to negligence
(careless behaviour); and defamation (writing or speaking a false statement about someone which
damages their reputation).

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Family law: family law deals with matters relating to family and domestic relationships. Issues dealt
with in family courts include distribution of property on the breakdown of relationships, arrangements
relating to children and child support.

Land law: land law is the set of rules that govern the land and anything attached to it, such as trees or
buildings; or anything in it; for example, treasure or oil. Key areas of court action relate to disputes
over rights to land, rights across land, rights in relation to the use of land and boundaries between
neighbouring land.

1.6 Constitutional principles and the legal system

1.6.1 The constitution

When we talk of a country’s ‘constitution’ we are referring to the way a country is governed and the
way that power is organised and distributed. Many countries, such as the USA, Germany, South Africa
and Kenya have written constitutions in which the rules for the governance of the country are laid
down in a single document and are specially protected so that changes to those rules are virtually
impossible to make. In the UK, there is no written constitution which explains in one single document
how power is divided and exercised. Instead, constitutional rules and principles are scattered over a
range of written materials. The unwritten constitution in the UK has developed over many hundreds
of years and the rules relating to governance can be found in statutes, common law, custom and what
are known as constitutional conventions, which are longstanding practices that are so widely
recognised that essentially they have become unwritten rules. So when it is said that the UK does not
have a written constitution, it is perhaps more accurate to say that the UK constitution is partly written
(in statutes and common law precedents), but that it is largely ‘uncodified’.

1.6.2 Constitutional principles

In the Kenyan constitutional arrangements, three of the most important principles are:

1. the separation of powers

2. the sovereignty of the People

3. the rule of law.

1. The separation of powers

Within the modern state there are three main centres of power:

a. the legislature – which is responsible for making new laws (in Kenya, this is Parliament & County
Assemblies)

b. the executive – which is responsible for implementing the law and running the country

c. the judiciary – which is responsible for determining legal disputes and interpreting legislation passed
by the legislature.

The separation of powers between the three branches of the state rests on the idea that a division of
power prevents the accumulation of too much power in the hands of one body or person and provides
a system of ‘checks and balances’. One of the earliest statements of the separation of powers was
given by the French political thinker Montesquieu in 1748:

When the legislative and executive powers are united in the same person, or in the same body of
magistrates, there can be no liberty … there is no liberty if the powers of judging is not separated from

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the legislative and executive … there would be an end to everything, if the same man or the same body
… were to exercise those three powers-Montesquieu, The spirit of laws. (c.1748)

Thus, for example, the judiciary have responsibility for checking that the executive governs according
to law – that it does not exceed its lawful powers.

The legislature has responsibility for creating new laws; however, the judiciary are responsible for the
interpretation of that law. The judiciary are independent of the legislature and executive and are not
subject to interference by the Executive.

The independence of the judiciary

An essential element in the operation of the rule of law is an independent judiciary. This means that
individual judges and the judiciary as a whole should decide cases according to law, free from
interference by the executive and separate from the legislature. They should be both impartial and
independent of all external pressures and of each other. This is important for public confidence in the
judiciary and for the proper functioning of the justice system according to law. Improper pressure
could be exerted by the executive, the legislature, litigants, pressure groups, the media or, indeed,
more senior judges. Judges are required to decide cases only on the evidence presented in court by
the parties and in accordance with the law. This is essential for the delivery of fair and impartial justice.

As will become clear later, the constitutional position of the judiciary in relation to both the legislature
and executive is a live and often controversial issue. There is considerable scholarly debate about the
question of the extent to which the role of the judiciary in interpreting legislation and developing the
common law overlaps with the responsibility of the legislature. There is also debate about the extent
to which, the judiciary, is involving itself in what are essentially political rather than legal issues. This
raises the question of the extent to which the judiciary should be accountable as well as independent.
In recent years the role of the judiciary in disputes between the citizen and the state has increased
alongside the growth in governmental functions. The responsibility of the judiciary to protect citizens
against unlawful acts of government has thus increased, and with it the need for the judiciary to be
independent of government. As Lord Phillips, the first President of the UK Supreme Court noted in
2011:

The citizen must be able to challenge the legitimacy of executive action before an independent
judiciary. Because it is the executive that exercises the power of the State and because it is the
executive, in one form or another, that is the most frequent litigator in the courts, it is from executive
pressure or influence that the judiciary are particularly to be protected.

The rule of law

The rule of law is a critical constitutional concept which is used to describe the factors necessary for a
well-functioning or healthy state and, in particular, to constrain the exercise of arbitrary power. At its
most basic, the rule of law dictates: (a) that a citizen should only be punished if it is proved in court
that they breached a law, so that people cannot be punished arbitrarily; and (b) that no person is
above the law, and everyone is equal before the law. This means that the law applies to everyone
regardless of social, economic or political status or, indeed, wealth. The idea of the rule of law was
known to philosophers such as Aristotle, writing around 300 years BC, but the British constitutional
theorist Albert Venn Dicey, writing in the 19th century, popularised the concept of the rule of law.
One of the most influential contemporary formulations of the rule of law was offered in 2006 by Lord
Bingham, a famous English judge. Lord Bingham’s articulation of the fundamental principle of the rule
of law is that:

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… all persons and authorities within the state, whether public or private, should be bound by and
entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly
administered in the courts.

Lord Bingham then set out eight essential ‘ingredients’ of the rule of law.

1. The law must be accessible, intelligible, clear and predictable.

2. Questions of legal right and liability should normally be resolved by the application of law rather
than the exercise of discretion.
3. The laws of the land should apply equally to all, except where objective differences justify
differentiation.
4. The law must give adequate protection to human rights.
5. Some means should be provided for the resolution of civil disputes that do not involve excessive
cost or delay.
6. Ministers and public officers must exercise their powers reasonably, in good faith, for the purpose
for which the powers were conferred and without exceeding the limits of such powers.
7. The adjudicative procedures provided by the state should be fair.
8. The state must comply with its obligations in international law. Judicial independence and the rule
of law.

The distinction between law and facts

In both civil law and common law legal systems, when people are in dispute over a legal issue, or
where a person is accused of a crime, it is for the courts to decide the outcome of the case according
to the legal merits of the case. The judge gives a legal determination or ruling which is then
enforceable by the state. So if a person is accused of murder and the court finds them guilty, they will
be sent to prison. If a car driver has injured a pedestrian and the court finds that they have driven
carelessly, they may be ordered to pay compensation to the injured person and they will be forced to
do so by the state. In both of these situations, and in all legal systems, the job of the court is to
determine the facts of the case and apply the relevant law in order to reach an accurate legal
determination. Although there is sometimes a blurred line between what is a ‘question of fact’ and
what is a ‘question of law’, for practical purposes we can say that questions of fact are those which
attempt to prove what happened in a particular case. Was the driver exceeding the speed limit when
he knocked over the pedestrian? Did the pedestrian run into the road without looking? These
questions of fact will be determined by various types of evidence such as statements made by
witnesses or expert evidence. Questions of law are the legal principles that may be argued in a case
and procedural rules determining how the case will be dealt with in a court. In dealing with legal cases
and reaching a legal determination of the case the courts will follow certain rules about what evidence
of the facts needs to be provided, how and when the evidence should be provided.

Substantive and procedural law

‘Substantive law’ is law that defines, regulates and creates the obligations and rights of a particular
party. By contrast ‘procedural law’ or ‘adjectival law’ deals with the steps that have to be taken in
order to enforce the substantive rules, both before cases are brought to court and when they are
being heard in court by the judge and in criminal cases by a judge and jury. The system of procedural
rules is designed to ensure that judges in adversarial proceedings (see below) have all of the
appropriate evidence available so that they can determine the essential or ‘material’ facts of the case
and apply the substantive law to those facts. For example, in criminal trials hearsay evidence is

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excluded. This is where a witness did not directly see or hear something important but was informed
of it by another person. For evidence to be ‘admissible’ in court, the court must be able to hear a
witness who saw or heard something and be able to observe them being cross-questioned, so that
their credibility can be tested. The significance of procedural law is that it is thought to guarantee
fairness in legal proceedings and to increase the chance that judges will make an accurate decision on
the basis of the facts and the law – a ‘substantively just’ decision. Jeremy Bentham (a famous 19th-
century English legal philosopher) saw the rules of procedure as being central to the machinery of
justice. For Bentham, the power of procedure was in the link between evidence and correct decisions
(what he called ‘rectitude’ of decisions).

Procedural justice

Procedure is also important to litigants – the parties involved in legal cases – and their perceptions of
fairness. Those involved in legal proceedings want an opportunity to put their case; the opportunity
to influence the judge; a judge who is impartial and even-handed; and to be treated with courtesy and
respect. So procedural justice is not only important in leading to correct legal decisions or substantive
justice, but it is an important influence on citizens’ perceptions of the fairness of legal processes.

Inquisitorial and Adversarial Procedure

One of the differences between common law and civil law jurisdictions is in their approach to legal
proceedings. Although the differences can sometimes be overstated, common law court proceedings
are generally based on ‘adversarial’ procedures in which the parties are responsible for preparing their
case and collecting their evidence. At the trial of the case in court the parties’ advocates will present
their clients’ respective arguments in a sort of contest before a judge (or judge and jury). Witnesses
will be called to give evidence and then cross-examined on their evidence. The role of the judge is to
remain relatively passive during proceedings, ensure that procedures are followed and at the end of
the hearing or trial give the decision based on a view of the legal merits of the parties in relation to
the facts presented. Adversarial processes work best when there is a rough equality between the
parties in terms of representation and resources.

By contrast, in civil law jurisdictions, legal cases are determined on the basis of ‘inquisitorial’
procedures. In inquisitorial proceedings the judge plays a more active role in the investigation of a
case. The judge will decide which witnesses should be called and will take responsibility for uncovering
the facts of the case. In serious criminal cases in France, judges may be involved as part of the
investigation as examining magistrates. At the trial the judge assumes a direct role, conducting the
examination of witnesses, often basing his or her questions on the material in the pretrial dossier.
Neither the prosecution nor the defence has the right to cross-examine. The use of juries in civil law
jurisdictions is rare although lay assessors frequently sit alongside judges in serious criminal cases. The
adversarial and inquisitorial models are distinguished primarily by whether the parties or the court
control three key aspects of the litigation: initiating the action; gathering the evidence; and
determining the sequence and nature of the proceedings.

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COURTS AND THEIR JURISDICTION /JUDICIARY

The courts are part of the Judiciary arm of government as provided for under Chapter 10 of the
Constitution of Kenya 2010. In the exercise of judicial authority, the Judiciary/courts, shall be subject
only to this Constitution and the law and shall not be subject to the control or direction of any person
or authority. Courts exercise judicial authority within the jurisdiction conferred on them. In exercising
judicial authority, the courts and tribunals shall be guided by the following principles: justice shall be
done to all, irrespective of status; justice shall not be delayed; alternative forms of dispute resolution
including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be
promoted; justice shall be administered without undue regard to procedural technicalities; and the
purpose and principles of the Constitution shall be protected and promoted.

Civil and criminal courts

Civil courts exist in order to resolve disputes between private citizens or between a citizen and the
state. These disputes may involve, for example, breach of contract, liability for injury in the law of tort,
property rights, family disputes or the wrongful exercise of power by a public authority. The person
bringing the claim is the ‘claimant’; and the person defending the claim is the ‘defendant’. If the
defendant is found liable, the court has the power to order the defendant to pay monetary
compensation to the claimant or to order some other remedy.

Criminal courts exist in order to hear and determine cases in which people are accused of breaking
the criminal law. The case will be brought by the ‘prosecution’ against an ‘accused’ or ‘defendant’. If
the defendant is found guilty, the criminal court has the power to inflict punishment in the form of a
fine or imprisonment. The vast majority of prosecutions are brought by the Crown Prosecution Service
or other state agencies.

‘First instance’ and ‘appeal’ courts

In both civil and criminal cases, once a decision has been given by the court, it may be possible to
appeal against the decision to a higher court. Thus there is a further distinction between ‘first instance’
or trial courts and ‘appellate courts’.

Unanimous, concurring and dissenting judgments

In some of the courts in the hierarchy, judges sit in panels rather than alone (for example, the Supreme
Court and the Court of Appeal and occasionally at the High Court). In these cases, judges normally sit
in panels of 3, 5, 7 or 9 because in the English common law tradition it is permissible and legitimate
for a judge to disagree with others on a judicial panel. In such a case the judge will deliver a ‘dissenting
judgment’ and the case will be decided by the majority. Where all of the judges agree, the decision
will be unanimous. Even when all of the judges agree, it is quite common for all of the judges hearing
a case to write their own decision. Although the judges agree, they may have a slightly different
interpretation of some of the issues in the cases or wish to express their view slightly differently from
the other judges. Where judges write a decision agreeing with the other members of the panel it is
called a ‘concurring’ judgment.

Jurisdiction of Courts

Courts only act as per the authority (jurisdiction) that they have. This jurisdiction is conferred by law,
either Constitution or statute.

Supreme Court’s Jurisdiction

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a) exclusive original jurisdiction to hear and determine disputes relating to the elections to the
office of President;
b) appellate jurisdiction to hear and determine appeals from the Court of Appeal so long as the
same are issues of constitutional interpretation/application as of right or matters that have
been certified as matters of general public importance by the Court of Appeal or Supreme
Court; and any other court or tribunal as prescribed by national legislation.
c) The Supreme Court may give an advisory opinion at the request of the national government,
any State organ, or any county government with respect to any matter concerning county
government.

Court of Appeal’s jurisdiction

The Court of Appeal has jurisdiction to hear appeals from:

a) the High Court;

b) and any other court or tribunal as prescribed by an Act of Parliament.

High Court’s jurisdiction

a. unlimited original jurisdiction in criminal and civil matters;

b. jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights
has been denied, violated, infringed or threatened;

c. jurisdiction to hear an appeal from a decision of a tribunal appointed under this Constitution to
consider the removal of a person from office;

d. jurisdiction to hear any question respecting the interpretation of this Constitution including the
determination of-

i. the question whether any law is inconsistent with or in contravention of this Constitution;

ii. the question whether anything said to be done under the authority of this Constitution or of any
law is inconsistent with, or in contravention of, this Constitution;

iii. any matter relating to constitutional powers of State organs in respect of county governments
and any matter relating to the constitutional relationship between the levels of government;

iv. a question relating to conflict of laws;

e. any other jurisdiction, original or appellate, conferred on it by legislation.

f. supervisory jurisdiction over the subordinate courts and over any person, body or authority
exercising a judicial or quasi-judicial function, but not over a superior court.

The hierarchy of the courts

The courts in the Kenyan legal system, shown in the diagram below, are in a hierarchical relationship.
Courts are organised on the basis of seniority. The more senior the court in the hierarchy, the greater
will be the authority of the decisions of the court. So the decisions of the Supreme Court are the most
important and authoritative decisions of all the courts. The Court of Appeal and High Court are also
authoritative, but less so. The Supreme Court, the Court of Appeal and the High Court are considered
to be superior courts as per the Kenyan Constitution 2010.

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JUDICIAL PRECEDENT

The doctrine of judicial precedent is fundamental to the operation of common law. In practice it means
that a judge deciding a particular case will look for a ‘precedent’ – a decision in an earlier similar case
– to help them reach their decision in the case before them. One of the most important justifications
for following precedents is related to the idea of doing justice. Consistency is seen as an essential
element in doing justice, in the sense that similar cases coming before the courts for determination
should be treated in a similar way. Another practical justification for following precedent is that if
judges follow the reasoning and decisions of their judicial colleagues, the common law becomes
certain and predictable. This is desirable so that people can organise their affairs knowing what the
law is, and to avoid continually litigating legal points. Thus it is regarded as both fair and efficient to
follow precedent. Expressed in this way, the practice of precedent is not particularly unusual and is to
be found to a greater or lesser degree in most developed legal systems. Indeed, in civil law jurisdictions
there is a principle of non-binding precedent, sometimes referred to as the doctrine of judicial
consistency, according to which it would be thought erratic if the courts significantly varied their
approach to similar legal questions.

The concept of binding precedent

However, in the English common law system, we talk of the doctrine of ‘binding’ precedent in which
the courts are bound to follow earlier decisions, even though a judge in a second court might not
approve of the earlier precedent. Sometimes this will be referred to as the rule of stare decisis, which
literally means ‘to stand by decisions already made’. The idea of binding precedent in the common
law system is to ensure fairness through consistency, to provide predictability in the law and thus to
reduce the need for litigation. If people can determine what the law is, there is no need to litigate the
case and indeed no point in doing so. Legal advisers can advise clients with confidence about what the
legal principles are that a judge would apply in deciding a dispute in court and what the outcome
would be. The rule of binding precedent is that the legal rule established in a precedent will continue
to be applied in subsequent similar cases until either another court decides that the case was
incorrectly decided; or for some other reason cannot be allowed to stand; or until a court higher in
the hierarchy overturns the decision; or until Parliament decides to change the law by passing a new
Act of Parliament that overrules or alters the rule laid down by the court.

Binding and persuasive precedents

The doctrine of binding precedent represents a constraint on judicial decision making and there is a
distinction between precedents which a judge may choose to follow – persuasive precedent – and
those which a judge is bound to follow – binding precedent. A precedent is persuasive where it is not
binding, but will still be taken into account by a court. The judge will feel that they are under some
obligation to explain why they are not going to follow a persuasive precedent. All serious statements
made by judges of the higher courts are treated with respect and may be cited in any court.

Vertical and horizontal precedent

In the English common law system, the doctrine of binding precedent means that a judge in a lower
court must apply a decision made in a similar case in a higher court or, indeed, in a court at the same
level. These are the concepts of vertical and horizontal precedent.

Vertical precedent – refers to the extent to which a court lower down the hierarchy is bound to follow
a decision of a court higher up the hierarchy. For example, is the Court of Appeal bound to follow the
decisions of the UK Supreme Court?

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Horizontal precedent – refers to the extent to which a court at the same level is bound to follow its
own earlier decisions. For example, is the Court of Appeal bound to follow its own earlier decisions?

The distinction between ratio decidendi and obiter dicta

The decisions of judges in reported cases contain a large amount of material. Decisions normally
comprise material about the facts of the case; information about the arguments made in court; and
then there is the decision of the case and the reasons for the decision – or the reasoning that leads to
the decision. The essential pieces of information in a reported case that will be important for the
operation of the system of binding precedent are: the material facts of the case; and the application
of legal principles to those facts that leads to the decision. What constitutes the precedent that must
be followed in later cases is the ratio decidendi – the ‘reason for deciding’. The ratio decidendi is often
contrasted with other parts of the judgment which are regarded as obiter dicta – things said by the
way, but which were not essential for the decision in the case. The ratio decidendi is essentially the
legal rule that leads to the decision and it is this legal rule that is binding on a later judge. The ability
to read a reported case and to identify its ratio decidendi is an essential skill of the lawyer. It is a skill
that must be developed in order to make sense of the common law, to understand judicial reasoning
and, ultimately, to be in a position to provide advice on legal disputes and problems.

Material facts

The ‘material’ facts of a case are the facts that are important to the decision. Not all facts in a case will
be relevant to the decision and the judge will generally make fairly clear which facts are relevant. So,
for example, in the famous case of Donoghue v Stevenson [1932] AC 562 the court dealt with the
question of whether a manufacturer of a food product could be liable for causing injury to the ultimate
consumer of the product as a result of negligent manufacture. In this case Mrs Stevenson was made
ill as a result of consuming ginger beer poured from a brown bottle which contained a dead snail. The
fact that the bottle was brown – and thus the contents could not be examined – was a material fact,
while the fact that the content of the bottle was ginger beer was not material. The bottle could have
contained lemonade or any other drink. The point was that the contents could not be examined.

Distinguishing Precedent

The doctrine of binding precedent requires that a judge follows the decisions of earlier cases unless a
similar earlier precedent can be ‘distinguished’. Cases can be distinguished on their material facts or
on the point of law involved. This is a device sometimes resorted to by judges in order to avoid the
consequences of an inconvenient decision which is, in strict practice, binding on them.

How can cases lose their binding authority?

There are three principal ways in which a case can lose its binding force:

i. Express or implied overruling: a case may be expressly overruled by Parliament if

Parliament chooses to do so. Alternatively, if a case has not been expressly overruled but
is inconsistent with a later Act of Parliament it will be deemed to have been ‘impliedly
overruled’.
ii. Reversal: a case is reversed when the loser appeals and the appeal court agrees with
them. Sometimes cases are reversed only on some issue of fact. Where this happens the
ratio does not lose its binding force.
iii. Overruling: a case is overruled when a higher court, dealing with indistinguishable
material facts, either expressly overrules the earlier case, or produces a ratio which is
inconsistent with that of the earlier case.

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How do you identify the ratio decidendi of a case?

This is the question that all law students ask. There is no simple way. The ratio does not appear
underlined and in red ink in the judgment. Reported cases may run to 10, 20 or 50 pages and
include judgments given by several judges in the case. The only way to identify the ratio is through
a careful process of analysis and comprehension. Reading through the case, following the analysis
of the judge, following the judge’s identification of the key legal principles and understanding how
they have applied those principles to the facts of the case in order to reach their decision. This is
legal method and you will learn it by reading cases together with the explanation of cases that you
find in your textbooks.

The role of the judiciary in the operation of precedent

The doctrine of binding precedent is a judge-made rule It is worth noting that the doctrine of
binding precedent is a limitation which the judiciary have imposed on themselves. It is not a rule
of Parliament but a judicial discipline and if the judiciary were to agree on a change they would,
in theory, be free to do so. This is exactly what happened in 1966 when the judges in the House
of Lords (what is now the UK Supreme Court) decided to change their practice. They agreed that
in the future although they would normally regard themselves as bound by their own earlier
decisions, in appropriate cases they would be prepared to overrule an earlier decision. This issue
is discussed in detail later in this chapter.

Do judges make or declare the law?

Historically there has been considerable debate about the role of the judiciary in the English
common law system. Constitutionally it is for the legislature to make law and for the judiciary to
give effect to that law. The judiciary are not elected representatives of the people and therefore
lack legitimacy for law-making in a democratic society governed by the rule of law (what is often
referred to as a ‘democratic deficit’). This strict approach to the role of the judiciary was
expounded by William Blackstone and is known as the ‘declaratory theory’ – that the role of the
judge is to declare what the law is, and not to make it. An example of this approach is given by
Lord Simonds in the case of Midland Silicone Ltd v Scruttons Ltd [1962] AC 446, where he said:
“Nor will I easily be led by an undiscerning zeal for some abstract kind of justice to ignore our first
duty which is to administer justice according to law, the law which is established for us by an Act
of Parliament or the binding authority of precedent.”

However, there is ample judicial writing and scholarly discussion to conclude that in the English
common law system the judiciary do perform a limited law-making function in incrementally
developing the common law to ensure that it keeps pace with changes in social and economic
conditions and remains sufficiently flexible to accommodate new situations. In his memoirs in
1972 after retiring from the House of Lords (what is now the UK Supreme Court) Lord Reid
indicated his view in the title of his book, The judge as law maker. He famously said: “We do not
believe in fairy tales any more. So we must accept the fact that for better or worse judges do make
law, and tackle the question how do they approach their task and how they should approach it.”

In the case of National Westminster Bank v Spectrum Plus [2005] 2 AC 680, Lord Nicholls said at
para.32: “The common law is judge-made law. For centuries judges have been charged with the
responsibility of keeping this law abreast of current social conditions and expectations. That is
still the position. Continuing but limited development of the common law in this fashion is an
integral part of the constitutional function of the judiciary. Had the judges not discharged this
responsibility, the common law would be the same now as it was in the reign of King Henry II. It is

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because of this that the common law is a living instrument of law, reacting to new events and
new ideas, and so capable of providing the citizens of this country with a system of practical
justice relevant to the times in which they live.”

However, in his essay The judge as lawmaker (1997), Lord Bingham identified some situations
where judges would or should be reluctant to make new law. For example: where citizens have
organised their affairs on the basis of their understanding of the law; where a defective legal
rule requires detailed amendments, qualifications and exceptions; where the issue involves a
matter of social policy on which there is no consensus; or where the issue is in a field outside of
ordinary judicial experience. The extent to which any judge is prepared to innovate will depend
on their view of the balance to be achieved between competing requirements of the common
law. These are: the need for stability in the common law; the need for certainty in the common
law; the need for flexibility in the common law; the desire to do justice between the parties in
the instant case; the duty not to usurp (take over) the role of Parliament.

As Lord Dyson concluded in his 2014 speech on the power of the judiciary: “… in deciding
whether to develop the common law or to leave any change to Parliament, the courts do not
apply some overarching principle … some judges are more cautious than their colleagues; others
are more adventurous. But despite these differences, the common law continues to evolve. What
is clear is that the judges have great power in shaping the common law and, therefore,
influencing the lives of all of us. The existence of this power is, of course, always subject to
Parliament. If Parliament wishes to change the common law, it can do so. But, despite some
notable exceptions … Parliament rarely shows any appetite to change the common law. So far as
I am aware, the manner in which the judges develop the common law has not excited much
political comment or given rise to a demand to clip the wings of the judges. I would like to think
that this is because, on the whole, the judges have done a good job in this area and no-one has
suggested a fundamentally different way of doing things that would command popular support.”

Exceptions to Rule on Judicial Precedent

There several exceptions to the rule of judicial precedent. The exceptions were set out by Lord
Green MR in the case of Young v Bristol Aeroplane Co Ltd [1944] 2 All ER 293 and are as follows:

i. Conflicting decisions: where the material facts of two Court of Appeal cases are similar
but the decisions conflict, then a later Court can choose which case to follow. Although
in practice the Court will often follow the later case, it is not bound to do so. Although
conflicting decisions in this sense ought to not arise if the system of precedent is
observed by judges, in fact there are cases where it has happened. An example of the
use of this rule is National Westminster Bank v Powney [1990] 2 All ER 416 where the
Court was faced with two irreconcilable decisions both decided in 1948: Lamb v Rider
and Lough v Donovan. The Court in Powney followed Lamb v Rider. See also Tiverton
Estates Ltd v Wearwell Ltd [1974] 1 All ER 209, where the Court of Appeal refused to
follow Law v Jones [1973] 2 All ER 437.
ii. Conflict with subsequent Supreme Court decision: where a previous decision of the
Court of Appeal/lower courts conflicts with a later decision by the Supreme Court, the
Court of Appeal/lower courts must follow the decision of the Supreme Court whether or
not it approves of that decision. This is sometimes referred to as the doctrine of ‘implied
overruling’.
iii. Decisions ‘per incuriam’: where a previous decision was given per incuriam, which
means, ‘in ignorance’ or ‘without sufficient care’, a later court is not bound to follow the

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decision. A decision of a superior court will lose its binding force where it was made in
ignorance of some rule of law binding upon the Court and which would have affected its
decision. The per incuriam rule was explained by Sir Raymond Evershed MR in the case
of Morelle v Wakeling [1955] 2 QB 379, 406 as follows: “Decisions given in ignorance or
forgetfulness of some inconsistent statutory provision or of some authority binding on
the court concerned: so that in such cases some part of the decision or some step in the
reasoning on which it is based is found, on that account to be demonstrably wrong.’

Judges as law-makers

As we have seen, the principle of stare decisis or binding precedent serves the objectives of
predictability, consistency and fairness within a common law system. Without binding
precedent, there is a risk of conflicting decisions and uncertainty. On the other hand, too rigid
adherence to precedent can lead to rigidity in the law. The English common law approach to
precedent provides a balance between predictability and flexibility. While most judges see
themselves constrained by binding precedent, there is scope within the rules for the
development of common law principles, for correction of errors and for the making of new law –
albeit in a measured and incremental way (Etherton, 2010; Dyson, 2014). The UK Supreme
Court, while largely free from the constraint of precedent, nonetheless adopts a cautious
approach to the making of new law. The Supreme Court does not have the democratic
legitimacy to introduce major changes to English law and it is mindful of its proper constitutional
position and relationship with the legislature.

The main argument in favour of some degree of judicial law-making (called judicial ‘activism’) is
that of speed. Courts can rapidly develop or change the law (by overruling) if it is necessary.
Parliamentary processes are lengthy and with a heavy legislative agenda Parliament may not
give priority to dealing with areas of law that require updating or correction. Thus within the
constraints of precedent the judiciary are able rapidly to correct mistakes or to keep the law up
to date.

The principal argument against the judiciary making new law is that of the ‘democratic deficit’.
The judiciary are appointed not elected. Thus in a Parliamentary democracy under the rule of
law, it is not for the judiciary to legislate but for Parliament. In his speech on law making by the
ECtHR Lord Sumption argues that the HRA gives the judiciary power to make new law in
politically controversial areas and that this is essentially undemocratic. He argues that ‘law made
in Europe by unelected judges is changing the law in the UK in a way that is democratically
unaccountable’. The case law provides examples of the House of Lords/Supreme Court being
willing to develop or change the law and also refraining from making decisions where there was
a need for Parliament to legislate.

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STATUTORY INTERPRETATION

Introduction

Once Parliament has passed legislation it is for the judiciary to make sense of the provisions in
statutes – to interpret or construe the meaning of the words used. The interpretation of statutes
is, in fact, a critical function of the judiciary. Despite England and Wales being a common law
jurisdiction, in the modern legal system there is a large and growing volume of legislation as
government seeks greater regulation of social and economic activity. As we saw in Chapter 1, the
role of the judiciary in relation to the legislature is to ‘give effect’ to Parliament’s intention. This
means that in dealing with statutory provisions the judiciary must interpret or construe the,.
meaning of words in a statute in a way that is consistent with what Parliament intended. As Tindal
CJ in the Sussex Peerage Claim (1844) expressed the approach:

“The only rule for the construction of Acts of Parliament is that they should be construed according
to the intent of the Parliament which passed the Act.”

However, there are two fundamental complexities in this simple statement. First, the natural
limitations of language mean that interpreting the meaning of words can sometimes be fraught.
Words may have several different meanings depending on the context, and the meaning of words
changes over time. Different judges in the same case may interpret words differently and it is
necessary to understand the approach that the judiciary take to this difficult task. The second
challenge for the judiciary in giving effect to Parliament’s intention is that it is not always clear
precisely what Parliament did intend when they used a particular word or phrase in an Act of
Parliament.

Why is the interpretation of statutes so difficult?

Interpretation is an essential step in human communication. We all interpret the meaning of

spoken and written words to ‘make sense’ of what is being read or heard. However, there are
special challenges in interpreting statutes. As explained by Francis Bennion in his famous book
Statute law (1990) there are a number of features of statutes that make interpretation difficult.
These include:

a) Ellipsis – when the draftsperson refrains from using certain words that they regard as implied
automatically.

b) Use of broad terms (wide meaning); for example, ‘vehicle’ clearly includes motor cars, buses –
but what else does it include? Also the meaning of broad terms may change over time, for example
does the word ‘family’ include a common-law spouse?

c) Unforeseeable developments – when there have been social or economic changes that
influence the meaning of words.

d) Inadequate use of words – printing errors, drafting errors.

Why does interpretation matter so much?

The way in which a judge interprets the meaning of a particular word may make the difference
between a defendant in a criminal trial being found innocent or guilty. The judge must decide the
meaning, scope and applicability of legislation to a particular fact situation. The distinguished jurist
A.V. Dicey noted how important the interpretative work of the judges is: “Statutes themselves,

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though manifestly the work of Parliament, often receive more than half their meaning from judicial
decisions.” (Lectures on the relation between law and public opinion in England during the
nineteenth century. (1905, 2001 edn) p.486)

The basic approaches to interpretation

In seeking to find the ‘legal meaning’ of a statutory provision, there is no rule of law that dictates
which approach a judge must take. It is largely up to the discretion of the individual judge.
Historically, judges have tended to adopt one of a number of approaches, sometimes referred to
as ‘three rules of interpretation’. These so called ‘rules’ are not rules at all, but it is worth briefly
noting the differences between the approaches and the impact that a different approach to
interpretation might have on the outcome of a case.

a) The literal rule or ‘literalism’

This approach requires the court to apply the ordinary English meaning of words used by
Parliament. The approach was explained by Lord Esher MR in the case of R v The Judge of the City
of London Court [1892] 1 QB 273: “If the words of an Act are clear, you must follow them, even
though they lead to a manifest absurdity. The court has nothing to do with the question whether
the legislature has committed an absurdity.”

An ancient example of the use of the literal rule is the case of R v Harris (1836) 7 Car & P 446, 173
ER 198 which involved interpreting an offence to ‘unlawfully and maliciously stab, cut or wound
any person’. The court decided that a defendant who bit off the end of the victim’s nose had not
committed the offence. The court held that the words in the statute indicated that for the offence
to be committed some form of instrument had to be used.

b) The golden rule

This is a modification of the literal rule. The judge begins by adopting a literal interpretation but if
this leads to an ‘absurd’ result the judge may modify the words to some extent. This approach was
explained by Lord Wensleydale in the case of Grey v Pearson (1857) 6 HL Cas 106: “… the
grammatical and ordinary sense of words is to be adhered to, unless that would lead to some
absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the
grammatical and ordinary sense of the words may be modified so as to avoid the absurdity and
inconsistency, but no further.”

An example of the use of the rule is the case of Adler v George [1964] 2 QB 7. Under s.3 of the
Official Secrets Act 1920, it was an offence to obstruct Her Majesty’s Forces in the vicinity of a
prohibited place. Adler was arrested for obstructing forces within a prohibited place. He argued
that he was not in the vicinity of a prohibited place since he was actually in a prohibited place (an
air base). The court applied the golden rule to extend the literal wording of the statute to cover
the action committed by the defendant. Had the literal rule been applied, it would have produced
absurdity, since someone protesting near the base would be committing an offence whereas
someone protesting in the base would not. See also the case of Re Sigsworth [1935] Ch 89.

c) The mischief rule

This is the oldest approach to statutory interpretation. As set out in Heydon’s Case (1584) 3 Co
Rep 7a, 76 ER 637 the approach involves the judge taking several steps in order to reach an
interpretation. The first step is to consider the state of the common law before the Act was passed.

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The second is to consider the ‘mischief’ or shortcoming that the Act was intended to cover. The
judge then interprets the Act in a way that achieves the intended purpose. To this extent the
approach of the mischief rule is very similar to the modern purposive approach discussed below.
A classic example of the use of the mischief rule is the case of Smith v Hughes [1960] 2 All ER 859.
This case involved interpretation of s.1 of the Street Offences Act 1959. The provision provided:
(1) It shall be an offence for a common prostitute to loiter or solicit in a street or public place for
the purposes of prostitution.

The accused was in a house, tapping on the window to attract the attention of passersby. She
argued that she was not ‘in the street’. Instead of adopting a literal approach, the court considered
what ‘mischief’ the Act was aimed at. Lord Parker CJ said: “For my part I approach the matter by
considering what is the mischief aimed at by this Act. Everybody knows that it was an Act intended
to clean up the streets, to enable people to walk along the streets without being molested by
common prostitutes.”

Lord Parker found a secondary meaning in the words. It was the ‘solicitation’ which must take
place in the street, not the person who does the soliciting.

d) Purposive Interpretation

Although similar to the mischief rule, judges adopting a purposive approach to interpretation are
taking a wider view and essentially trying to decide what Parliament intended to achieve in passing an
Act. This approach encourages the judge to look for the ‘spirit of the Act’, and to read words into or
out of the Act when this is necessary. A clear statement of this approach comes from the judgment of
Denning LJ in Magor & St Mellons RDC v Newport Corporation [1950] 2 All ER 1226 (CA); [1952] AC
189 (HL). He said: “We do not sit here to pull the language of Parliament to pieces and to make
nonsense of it. That is an easy thing to do and a thing to which lawyers are too often prone. We sit
here to find out the intention of Parliament and of ministers and carry it out, and we do this better by
filling in the gaps and making sense of the enactment than by opening it up to destructive analysis.”

This view was somewhat ahead of the interpretive curve and the approach of Denning LJ was severely
criticised when the case was appealed to the House of Lords on the ground that Lord Denning had
gone beyond the proper role of the judge. The concern is that the further judges move away from the
language of the Act, the more likely they are to be engaging in a legislative or quasi-legislative function.
As Lord Simonds commented in the Magor case in the House of Lords, ‘[Denning LJ’s views are] a
naked usurpation of the legislative function.’

In recent years the judiciary appears to be more comfortable using a purposive approach to
interpretation. To some extent this may reflect the effect of dealing with European legislation,
considered later in this chapter. In the case of Pepper v Hart [1993] 1 All ER 42 the House of Lords
accepted that the courts are now ready to adopt an approach that seeks to give effect to the ‘true
purpose’ of legislation and as a result will consider extraneous material that has a bearing on the
background to the legislation (see below on the use of Hansard). Another important case in which the
court adopted a purposive interpretation was R (on the application of Quintavalle) v Secretary of
State for Health [2003] 2 AC 687 concerning research on human embryos.

Aids to interpretation

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i) Presumptions of interpretation

Presumptions are a sort of judicial bias, a preference which a judge has for coming to one conclusion
rather than another. Many of them are used in order to save Parliament the trouble of saying what it
is not trying to achieve. All presumptions can be displaced if Parliament so wishes. Parliament’s wish
to displace a presumption can be shown explicitly or implicitly.

Example of a presumption

Statutes do not have retrospective effect-Statutes are presumed to be prospective (i.e. to operate
only in relation to events which take place after the act comes into force). This presumption is
especially strong in the area of criminal law.

ii) Rules of language

These language rules are similar to presumptions, and like presumptions they can always be displaced
expressly or by implication. They are different from presumptions in that they are not exclusively legal
in nature. Any sort of text can be subjected to these rules.

Ejusdem generis rule

General words which follow specific words must be read in the light of those specific words, provided
that the specific words are examples of some particular class (‘genus’). An example is the Sunday
Observance Act 1677 which provides that: “… no tradesman, artificer, workman, labourer or other
person whatsoever, [shall work on Sundays].”

Many cases exist on the question of what occupations are ejusdem generis with the list. Parliament
cannot have intended all occupations to be covered by the Act, because it would have been easier to
say, ‘No person whatsoever shall work on a Sunday.’ This is the justification for the ejusdem generis
rule.

Noscitur a sociis (a word is known by the company it keeps)

This rule is similar to ejusdem generis. It states that all words derive their meaning from their
immediate context. The rule is very useful when dealing with ambiguities in individual words where
the ambiguous word is used in close proximity to other similar words. An example is the case of
Pengelly v Bell Punch Co Ltd [1964] 2 All ER 945 concerning s.28 of the Factories Act 1961 which
provided that: ‘Floors, steps, stairs passageways and gangways [must be kept free from obstruction].’
The court held that ‘floors’ did not include areas designed and used for the storage of goods.

iii) Intrinsic material

All of the components of an Act of Parliament can be used to assist in the process of interpretation.
These include: the long title of the Act (containing a brief description of the purposes of the Act); the
short title (a short name given by Parliament so that the Act can be easily cited, e.g. The Theft Act
1968); a preamble if it exists (rare in modern Acts). They are used to set out in detail the reasons for
the existence of an Act. They always begin with the word ‘WHEREAS …’; the enacting sections which
are the substance of the Act with their subdivisions into sections and subsections; marginal notes
which give a brief explanation of the contents of a section; and headings which give clues as to the
contents.

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iv) Extrinsic material

While the internal context is concerned simply with other parts of the Act under consideration, the
wider context is concerned with all other matters which a court might wish to take into account in
interpreting an Act. An example is reports of parliamentary debates i.e Hansard.

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Assessment Questions

What are the rules (approaches) of statutory interpretation?

Why might reports of debates in Parliament (Hansard) be useful to judges in interpreting statutes?

Why is it necessary to interpret statutes?

What are the special challenges in dealing with statutory material?

What are judges seeking to do in interpreting statutes?

What practical difference might it make if judges differ in their approach to interpretation?

In the English common law system is it inevitable that judges will be making law?

Why are judges cautious about changing the law dramatically?

Are there areas of law where they are especially cautious about changing the law?

Explain the difference between a binding and a persuasive precedent.

Explain the difference between vertical and horizontal precedent.

Which part of a binding precedent is a judge bound to follow?

In reading a case, how can you distinguish between the ratio decidendi and obiter dicta?

What is the jurisdiction of the various courts in the Kenyan system?

How would you distinguish between ‘rule of men’ and ‘rule of law’?

Why is an independent judiciary essential to the rule of law?

Why is access to justice an essential element in the rule of law?

How does the rule of law protect societies from tyranny?

Explain the difference between civil and criminal law

Name three civil law and three common law jurisdictions.

In what way did the development of the common law support social order?

How did the development of equity mitigate some of the problems that had developed in the common
law?

Name and explain an equitable remedy.

What are the different functions of law?

Do you think these cover all of the functions we can identify for law?

How important is law in maintaining social order and economic stability as compared with unwritten
rules or behavioural conventions?

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