MOUNT KENYA UNIVERSITY

PARKLANDS LAW CAMPUS

SCHOOL OF LAW,
DEPARTMENT OF PUBLIC LAW

BLW 1104
LEGAL SYSTEMS &METHODS
COURSE OUTLINE AND SCHEDULE
SEP/DEC 2023 SEMESTER

LECTURER: MS. ROSEMARY KAMATHI

Class Schedule:
 Day: Monday (8am – 11am) (Class A)
Monday (11.00am-- 2pm) (Class B)
 Evening: Monday (5.30pm – 8.30 pm) (Evening Class)
 Day: Wednesday (8am – 11am) ( Class C)

Contacts:
 Email: [email protected]
 Mobile: 0723112564
Office Details:

MKU Parklands Law Campus

5th Floor (HoD, Public Law)
Consulting Hrs. (On Appointments)
.: Mondays 2pm to 5pm
: Tuesdays 8am to 1pm
: Wednesdays 2pm to 5pm
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COURSE PURPOSE

This is a foundational course which provides you with essential building blocks for the study
of law. Performing a complementary role to related courses such as Social Foundations of
Law the Course main Objective is to enable the learner to develop a perspective of the legal
order as a system, process, major legal systems of the world and their essential features and
the methods of statutory interpretations, Legal Drafting and the different methods of
Alternative Dispute Resolutions.

1. COURSE OUTCOMES

The course is geared to enabling the learner to:

 Discuss the nature and essential social functions of law;

 Identify and explain major legal systems of the world;
 Understand the structure of the central institutions and processes of the Kenyan legal
system; and
 Explain the concepts of legal education and legal aid in Kenya.
 Apply rules on legal Methods of both primary and secondary sources of Law and the
various methods of Statutory interpretation of the law;
 Outline the various sources of law in Kenya;
 Apply legislative law making, Essentials of Legal Drafting, judicial law making and
legal reasoning skills.

1. LEARNING METHODOLOGIES

The course shall be conducted through interactive lectures, class discussions, case studies and
research assignments.

1. COURSE CONTENTS

An overview of major legal systems in the world ( Common law , civil , social law,
religious law) including a brief overview on a comparison between the common law
systems and the civil legal systems; the ideology of the common law system and the
rule of law, justice and the separation of powers; presumptions of common law;
development of the East African legal systems; classification of law, source of Kenya
law; law making process; the Kenyan court system; doctrinal sources of Kenyan law;
law making process; the Kenyan court system ; doctrine of stare decisis; access to
justice and the legal aid; legal profession and legal service; jury system; law reform;
Government lawyers and organization of Government legal services; the language of
the law; interface between the Civil legal system and the common law system;

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 sources of law and its classification, division of law, the courts’ structure and the
jurisdiction, legislative law making, Legal Drafting judicial law making, logic and legal
reasoning, the common law case technique, statutes and the statutory
interpretation, construction rules e.g. the ejusdem generis rule, the function and
style of judgements,

2. COURSE ASSESSMENT

Grading will be in accordance with the Mount Kenya University Grading Policy. A learner
will be assessed through:

A. Continuous Assessments (30%):

 I: Sit In Assessment:
 II: Class Group Presentation
 Class Participation
Sub-total 30 Marks
B. Final Examination (70%): 70 Marks
Total: 100 Marks

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 1. COURSE REQUIREMENTS

 Registration

It is mandatory for each learner to register online for this course using the course code: BLW
1104.

 Regular attendance and class participation

This is a highly participatory course where learners are encouraged to share their own
perspectives and experiences, and to work individually and collectively in small workgroups.
Therefore, attendance to every class session is mandatory. However, learners who have
medical, family or other emergencies over the course of the semester are strongly advised to
inform the lecturer and class representative.

Learners are also encouraged to read ahead of the class for meaningful and vibrant
participation.

 Academic honesty

Learners enrolled in this course are expected to exercise a high degree of honesty and
integrity in class attendance, participation and assignments.

COURSE OUTLINE

WEE TOPICS/ DESCRIPTION

K

WEE Nature and social functions of law

K1  The meaning of law
 Nature/ features of law
 Functions of law in society
 Students Handbook as a Regulation

Recommended readings:
Peter Mugambi, Introduction to Law (Law Africa) Chapter 1
Martin Partington, Introduction to the English Legal System (Oxford University
Press 2015) Chapter 2
William Burnett Harvey, An Introduction to the Legal System in East Africa (Kenya
Literature Bureau 1975) Chapter 3

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WEE The Sources of Law
K 2,  Meaning of ‘sources’
&3  Written sources of law
 The Constitution
 Acts of Parliament/Statutes
 Statutes of general application
 Delegated/subsidiary legislation
 International law

The sources of law refer to the origins and authorities that create, define, and enforce legal
rules and regulations within a particular jurisdiction. These sources may vary from one
country or legal system to another, but they generally include the following categories:

1. Constitutional Law: In many countries, including the United States, there is a

constitution that serves as the supreme law of the land. Constitutional law defines the
structure of government, the allocation of powers, and the fundamental rights and liberties
of citizens. It often acts as a framework for all other laws.
2. Statutory Law: Statutory law consists of written laws enacted by legislative bodies,
such as national or state parliaments and congresses. These laws can cover a wide range of
topics, including criminal offenses, taxation, contracts, and more. Statutes are often the
primary source of law in civil law systems.
3. Common Law: Common law is a legal system that relies heavily on judicial
decisions and precedents. It involves the principles and doctrines developed over time by
judges through their rulings in individual cases. Precedent (stare decisis) plays a significant
role in common law systems, where decisions from higher courts are binding on lower
courts.
4. Administrative Law: Administrative law governs the actions and procedures of
government agencies and administrative bodies. It includes regulations, rules, and decisions
made by these agencies to implement and enforce statutory law. Administrative law often
deals with issues related to licenses, permits, and regulatory compliance.
5. Case Law: Case law refers to the body of legal principles and interpretations
derived from court decisions. Judges analyze and interpret statutory and constitutional law
when resolving cases, setting legal precedents in the process. Case law helps clarify and
expand upon statutory provisions.
6. Customary Law: In some societies, customary law is based on long-standing
traditions, practices, and customs that are recognized and enforced by the community.
Customary law may coexist with statutory or constitutional law and is often applied in
matters like family and property disputes.
7. International Law: International law governs relations between states and
international organizations. It includes treaties, conventions, and agreements between
nations, as well as customary practices that are accepted globally. International law can
affect domestic law in countries that incorporate it into their legal systems.
8. Religious Law: In some countries, religious law plays a significant role in the legal
system. This is particularly true in countries where the legal system is based on religious
principles, such as Islamic law (Sharia) in some Middle Eastern countries.
9. Equity: Equity refers to a set of legal principles and remedies that aim to provide
fairness and justice in situations where strict application of the law may lead to unjust
outcomes. Equitable remedies are typically administered by courts and include injunctions,
specific performance, and constructive trusts.
10. Legal Doctrine and Legal Scholarship: Legal scholars and academic writings

6
 contribute to the interpretation and development of legal principles and concepts. These
writings can influence the decisions of judges and lawmakers.

It's important to note that the sources of law may vary between different legal systems, such
as civil law, common law, religious law, and hybrid systems. Additionally, within a single
country, the hierarchy of these sources can differ, with constitutional law usually holding the
highest authority. Legal systems may also incorporate elements from several of these
sources, creating a complex web of legal norms and principles.

 Unwritten sources of law

 The Common law
 Doctrines of equity
 Customary law
 Religious law - Islamic law, Hindu customs

Unwritten sources of law, also known as customary or informal sources of law, are
sources of legal norms and principles that are not codified in written statutes,
constitutions, or formal documents. These sources of law are often based on
tradition, long-standing practices, and societal customs. They play a significant role
in legal systems around the world, particularly in situations where written laws are
limited or ambiguous. Here are some common examples of unwritten sources of law:

1. Customary Law: Customary law is a body of unwritten rules and practices

that have developed and been accepted by a community or society over time. It is
often used in matters related to family law, property rights, and cultural practices.
Customary law can coexist with formal legal systems and is recognized and enforced
by the community.
2. Judicial Precedent: In common law systems, judicial decisions and
precedents set by higher courts can be considered unwritten sources of law. Lower
courts are often bound by the decisions of higher courts, creating a body of unwritten
legal principles and interpretations.
3. Legal Traditions: Legal traditions and principles passed down through
generations within a particular culture or legal system can also serve as unwritten
sources of law. These traditions may influence how laws are interpreted and applied.
4. Legal Maxims: Legal maxims are concise statements or proverbs that
express fundamental legal principles. They are often used by judges and legal
professionals to guide their decisions and interpretations. Examples include
"ignorance of the law is no excuse" and "equity aids the vigilant, not the indolent."
5. Principles of Equity: Equity principles, which emphasize fairness and
justice, can serve as unwritten sources of law. Equitable remedies, such as

7
 injunctions and specific performance, are often applied by courts to address
situations where strict application of statutory law may lead to unjust outcomes.
6. Ethical Codes and Moral Values: Ethical codes and moral values within a
society can influence legal decision-making and the development of unwritten legal
norms. These values can be particularly relevant in cases where the law is unclear or
silent on certain issues.
7. Conventions and Practices: In international law, unwritten sources can
include customary international law, which is based on state practice and opinio juris
(the belief that a practice is legally required). These unwritten norms can become
binding on states through consistent and widespread adherence.
8. Legal Scholars and Commentary: The writings and opinions of legal
scholars, jurists, and commentators can contribute to the development of unwritten
legal principles. These interpretations and analyses of existing laws can influence
how judges and legal professionals understand and apply the law.

It's important to note that the significance and recognition of unwritten sources of
law can vary from one legal system to another. In some systems, such as common
law, unwritten sources like judicial precedent play a central role in legal decision-
making. In others, written statutes and constitutions may take precedence, with
unwritten sources serving a more supplementary role.

 Broad classification of law

 Public law v Private law
 Civil law v Criminal law
 Substantive law v Procedural law
 Municipal/ National law v international law
 Statutory law v non-statutory law

Law can be broadly classified into several categories based on various criteria,
including its subject matter, jurisdiction, and source. Here is a broad classification of
law:

1. Civil Law and Criminal Law:

 Civil Law: Civil law deals with disputes between individuals or
entities (e.g., contracts, property, family matters). It aims to provide remedies
to aggrieved parties and typically involves one party seeking compensation or
specific performance.
 Criminal Law: Criminal law focuses on offenses against the state or
society as a whole. It defines and punishes actions considered crimes (e.g.,
murder, theft, fraud). Criminal cases are initiated by the government, and the
aim is to impose penalties on the guilty party.
2. Public Law and Private Law:

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  Public Law: Public law governs the relationship between individuals
and the state or government entities. It includes constitutional law,
administrative law, and criminal law.
 Private Law: Private law, also known as civil law, regulates the
relationships between private individuals or entities. It includes contract law,
property law, family law, and tort law.
3. Substantive Law and Procedural Law:
 Substantive Law: Substantive law defines the rights, duties, and
obligations of individuals and entities. It specifies what people can and
cannot do in various situations.
 Procedural Law: Procedural law outlines the processes and
procedures for resolving legal disputes. It governs how cases are filed,
litigated, and appealed.
4. International Law and Domestic Law:
 International Law: International law governs relations between
sovereign states and international organizations. It includes treaties,
conventions, and customary practices that guide interactions on the global
stage.
 Domestic Law: Domestic law, also known as national or municipal
law, applies within the borders of a specific country. It includes the legal
systems and laws enacted by individual nations.
5. Common Law and Civil Law:
 Common Law: Common law systems, prevalent in countries like the
United States and the United Kingdom, rely heavily on judicial precedent and
case law to interpret and apply the law.
 Civil Law: Civil law systems, found in many European and Latin
American countries, are based on comprehensive legal codes and statutes.
Judicial decisions have less precedential value in civil law systems.

These broad categories are not mutually exclusive, and legal systems often
incorporate elements from multiple categories to create a comprehensive framework
for governing society. Legal classifications can also vary from one jurisdiction to
another based on local laws and customs.

Recommended readings:
The Constitution of Kenya, 2010
The Judicature Act, Chapter 8 of The Laws of Kenya
Peter Mugambi, Introduction to Law (Law Africa) Chapter 1 & 2
William Burnett Harvey, An Introduction to the Legal System in East Africa (Kenya
Literature Bureau 1975) Chapter 4
Glanville Williams, Learning the Law (Sweet & Maxwell 2010) Chapter 1
Virginia Edith Wambui v Joash Ochieng Ougo & Others (HCCC 4873 of 1986)

9
 Ruth Wanjiru Njoroge v Jemimah Njeri Njoroge & Another (HCCC 330 of 2004)
Kandie & 2 others v Beatrice Jepkemoi Cherogony (Civil Appeal No. 76 of 2002)

WEE Legal systems of the World

K4
• Essential features of a legal system explained

• Types of the major legal systems in the world

 Common law legal system

A common law legal system is one of the two primary legal systems in the world,
with the other being the civil law legal system. Common law systems are
characterized by several key features:

1. Precedent and Case Law: In a common law system, much of the law is
developed and refined through judicial decisions in individual cases. These decisions
become legal precedents that serve as guidance for future cases. Judges often rely on
past rulings to make decisions, and this accumulation of case law helps shape the
legal system over time.
2. Stare Decisis: The doctrine of stare decisis, meaning "to stand by things
decided," is a fundamental principle of common law systems. It requires judges to
follow precedent when deciding cases, ensuring consistency and predictability in the
law. However, judges can distinguish cases or overturn previous decisions if they
believe it is warranted.
3. Adversarial System: Common law systems typically follow an adversarial
system of litigation. In this system, legal disputes are resolved through a contest
between opposing parties, each represented by their legal counsel. The judge acts as
a neutral referee, and the parties present evidence and arguments to support their
positions.
4. Role of Judges: Judges in common law systems play a critical role in
interpreting and applying the law. They are responsible for making legal
determinations based on the facts and arguments presented in each case. Judicial
decisions contribute to the development of the law and establish legal principles.
5. Flexible and Evolving: Common law systems are adaptable and can evolve
over time. Judges have the authority to adapt legal principles to changing
circumstances and societal norms. This flexibility allows common law to remain

10
 relevant in a dynamic world.
6. Role of Written and Unwritten Law: Common law systems incorporate both
written statutes and unwritten or judge-made law (case law). While statutes passed
by legislatures provide a framework for the law, case law adds nuance and
specificity to legal rules.
7. Jury Trials: Common law systems often involve jury trials in certain types of
cases, particularly in criminal matters. Juries are composed of laypeople who listen
to evidence and help determine the facts of a case. The judge then applies the law to
those facts.
8. Legal Profession: Common law systems typically have a well-developed
legal profession, with lawyers playing a significant role in representing clients,
interpreting the law, and advocating for their clients in court.
9. Separation of Powers: Common law systems generally adhere to the
principle of the separation of powers among the executive, legislative, and judicial
branches of government. The judiciary is an independent branch responsible for
interpreting and applying the law.

Common law legal systems are most notably found in countries with historical ties to
the British legal tradition, including the United Kingdom, the United States, Canada,
Australia, and many other Commonwealth nations. While common law systems share
these fundamental features, there can be variations in specific rules and practices
from one jurisdiction to another.

 Civil law legal system

A civil law legal system, also known as a codified or continental legal system, is one
of the two primary legal systems in the world, alongside the common law system.
Civil law systems are characterized by several key features:

1. Codified Laws: In a civil law system, the law is primarily derived from
written statutes, codes, and regulations. These laws are comprehensive and cover
various aspects of civil, criminal, administrative, and commercial matters. The legal
rules are typically organized into codes or comprehensive statutes that serve as the
primary source of law.
2. Limited Role of Precedent: Unlike the common law system, civil law systems
place a limited emphasis on judicial precedent. Court decisions are generally not
considered binding on subsequent cases. Instead, decisions are persuasive and may
be used for guidance, but they do not establish legal precedent in the same way that
common law cases do.
3. Inquisitorial System: Civil law systems often employ an inquisitorial system
of litigation. In this system, the judge plays an active role in investigating and
determining the facts of a case. The judge may question witnesses and gather
evidence independently, in addition to hearing arguments from the parties involved.
4. Written and Detailed Codes: Civil law systems typically have detailed and
comprehensive legal codes that cover a wide range of legal topics. These codes are
drafted by legal experts and legislators and are meant to provide clear and specific
rules for resolving legal disputes.
5. Role of Legal Scholars: Legal scholars and academic experts play a
significant role in interpreting and explaining the law in civil law systems. Their

11
 writings and commentaries can influence the understanding and application of legal
principles.
6. Limited Role of Juries: Civil law systems often have a limited role for juries,
particularly in civil cases. In criminal cases, juries may be used for certain
decisions, but their role is usually more limited than in common law systems.
7. Adversarial Elements: While civil law systems are generally inquisitorial,
they may incorporate some adversarial elements, especially in courtroom
procedures. Parties may still present their arguments and evidence to the court.
8. Legal Specialization: Civil law systems often have a more specialized legal
profession, with lawyers specializing in specific areas of law, such as family law,
contract law, or administrative law.
9. Government-Centric: Civil law systems often place greater emphasis on the
role of the government and administrative agencies in regulating various aspects of
society. Administrative law is a significant component of civil law systems.

Civil law systems are prevalent in continental Europe, Latin America, Asia, and
various other parts of the world. Countries like Germany, France, Japan, and Brazil
follow civil law traditions. These systems are characterized by their emphasis on
written laws, legal codes, and the role of professional judges in applying the law.
While civil law systems have common characteristics, there can be variations in
legal rules and practices from one jurisdiction to another.

 Religious law legal system (Islamic law, Canon law)

Religious law legal systems, also known as theocratic legal systems, are characterized
by the influence of religious principles, doctrines, and texts in shaping and governing
legal norms and practices. Two prominent examples of religious law legal systems are
Islamic law (Sharia) and Canon law (Ecclesiastical law).

1. Islamic Law (Sharia):

Islamic law, commonly referred to as Sharia, is a legal system based on the teachings of
Islam as found in the Quran (the holy book of Islam) and the Hadith (the sayings and
actions of the Prophet Muhammad). Sharia governs various aspects of life, including
personal conduct, family matters, criminal justice, and commerce. Key features of
Islamic law include:

Religious Sources: The primary sources of Islamic law are the Quran and the
Hadith. Islamic scholars interpret these sources to derive legal principles and rules.
Comprehensive Nature: Sharia is a comprehensive legal system that addresses
both religious and secular matters. It covers areas such as marriage, divorce,
inheritance, criminal law, contract law, and more.
Legal Scholars (Ulema): Islamic legal scholars, known as ulema, play a crucial
role in interpreting and applying Sharia. Their scholarly opinions (fatwas) provide
guidance on legal matters.
Variations: There are variations in the interpretation and application of Sharia
across different Islamic countries and traditions. Some countries adopt a more
conservative interpretation, while others may have more modernized legal systems

12
 influenced by Islamic principles.
Application: In countries where Sharia is the basis for the legal system, it can
be applied in varying degrees, from personal status matters (family law) to aspects of
criminal law.

2. Canon Law (Ecclesiastical Law):

Canon law is the legal system of the Catholic Church and some other Christian
denominations. It governs the internal affairs of the Church, including matters related
to clergy, religious institutions, sacraments, and religious practices. Key features of
Canon law include:

Canonical Codes: The Catholic Church has several codes of Canon law, with
the most prominent being the 1983 Code of Canon Law for the Latin Church and the
Code of Canons of the Eastern Churches for Eastern Catholic Churches.
Church Authority: Canon law is under the authority of the Church hierarchy,
including bishops and the Pope. Canon lawyers, known as canonists, assist in
interpreting and applying Canon law.
Scope: Canon law covers a wide range of topics, including the administration of
the Church, the sacraments, marriage and annulment, the appointment of clergy, and
the resolution of disputes within the Church.
Exclusivity to Religious Institutions: Canon law applies exclusively within
religious institutions and does not govern civil matters in secular legal systems.

It's important to note that the application and influence of religious law legal systems
vary among countries and regions. In some countries, aspects of religious law may
coexist with secular legal systems, while in others, religious law may be the dominant
legal framework for certain matters. In many cases, secular legal systems may adapt or
incorporate elements of religious law to varying degrees, depending on the legal
traditions and cultural contexts of each country or religious community.

 Customary law legal system

A customary law legal system, often referred to as customary law or traditional law,
is a legal system that derives its authority and norms from the customs, traditions,
and practices of a particular community or group of people. Customary law is
distinct from statutory or written law, as it is largely unwritten and based on
longstanding practices and norms that have evolved within a specific cultural or
social context. Here are some key features of customary law legal systems:

1. Oral Tradition: Customary law is primarily transmitted orally from

generation to generation. It is not codified in written statutes or codes. Instead, it
relies on the collective memory and traditions of the community.
2. Community-Centric: Customary law is often community-centric, meaning
that it is specific to a particular group, tribe, or ethnic community. The customs and
practices that form the basis of customary law may vary significantly between
different communities.
3. Variability: Customary law can vary widely from one community to another.
What is considered customary law in one community may not be applicable or

13
 recognized in another. This makes it a highly localized and context-specific legal
system.
4. Recognition by the State: In some countries, customary law is officially
recognized and incorporated into the legal system, particularly in areas where
indigenous or tribal communities have a significant presence. In such cases,
customary law may be used alongside formal, statutory law.
5. Informal Resolution Mechanisms: Customary law often provides
mechanisms for resolving disputes within the community. These mechanisms may
include councils of elders, religious leaders, or other respected community figures
who mediate and adjudicate conflicts.
6. Gender and Social Dynamics: Customary law may reflect traditional gender
roles and social hierarchies within a community. This can sometimes result in
practices that are perceived as discriminatory, particularly against women and
marginalized groups.
7. Flexibility and Adaptability: Customary law can be flexible and adaptable to
changing circumstances within the community. It allows for the evolution of norms
and practices over time.
8. Consensus and Community Participation: Decision-making in customary
law often involves reaching a consensus within the community. It is a participatory
process where community members have a say in the formulation and application of
norms.
9. Challenges of Legal Pluralism: In many countries, customary law coexists
with formal legal systems, leading to legal pluralism. This can create challenges and
conflicts when the two legal systems intersect.
10. Recognition and Human Rights: In some cases, there may be tensions
between customary law and international human rights standards, particularly
regarding issues related to gender equality, minority rights, and individual freedoms.

It's important to note that the recognition and status of customary law can vary
widely from one jurisdiction to another. Some countries have taken steps to formalize
and harmonize customary law with statutory law to ensure that it respects
fundamental human rights and legal principles. Customary law continues to play a
vital role in many communities, particularly in rural and remote areas, where
traditional practices and customs remain deeply ingrained in daily life.

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  Pluralistic/ Mixed law legal system
A pluralistic or mixed law legal system is characterized by the coexistence of multiple legal
traditions or legal systems within a single jurisdiction. These legal systems may have
different historical, cultural, or religious origins and often reflect the diversity of the
population in a particular region or country. Key features of pluralistic or mixed law legal
systems include:

1. Coexistence of Legal Traditions: Pluralistic legal systems involve the simultaneous

existence of multiple legal traditions or systems within a single jurisdiction. These traditions
can include common law, civil law, customary law, religious law, and more.
2. Historical and Cultural Roots: The presence of multiple legal traditions in a
pluralistic legal system is often a result of historical factors, such as colonialism, conquest,
or the fusion of different cultures. These traditions may have evolved over time and
influenced one another.
3. Multiple Sources of Law: Legal rules and principles in a pluralistic legal system
can be derived from various sources, including written statutes, judicial decisions,
customary practices, religious texts, and traditional or indigenous norms.
4. Legal Pluralism: Legal pluralism refers to the recognition and accommodation of
multiple legal systems within the same jurisdiction. Different legal systems may apply to
specific communities, groups, or aspects of life.
5. Complexity and Diversity: Pluralistic legal systems are often characterized by
complexity and diversity. This diversity can make legal interpretation and application
challenging, as different legal traditions may have conflicting principles or norms.
6. Harmonization and Legal Reforms: Some countries with pluralistic legal systems
undertake legal reforms to harmonize and integrate various legal traditions into a more
unified legal framework. These reforms may involve legislative changes, constitutional
amendments, or judicial decisions aimed at achieving consistency and fairness.
7. Recognition of Customary and Indigenous Law: Pluralistic legal systems often
recognize the importance of customary or indigenous law for specific communities or
groups. Customary law may be applied to issues such as land rights, family matters, and
dispute resolution within those communities.
8. Legal Professionals: Lawyers, judges, and legal scholars in pluralistic legal
systems may need to be well-versed in different legal traditions to navigate the complexities
of the legal landscape and serve diverse client populations.
9. Legal Education and Training: Legal education in countries with pluralistic legal
systems often includes the study of various legal traditions to prepare legal professionals for
practice in this diverse legal environment.

Examples of countries with pluralistic or mixed law legal systems include South Africa
(which combines elements of common law, civil law, and indigenous law), Malaysia (with its
dual legal system of civil law and Islamic law), and India (which has a complex legal
landscape incorporating civil law, common law, and religious laws for different
communities).

These systems require careful consideration of the interaction between legal traditions and
the protection of fundamental rights and equality under the law. Efforts to harmonize and
reconcile different legal traditions are often essential to ensure legal fairness and justice
within pluralistic legal systems.

15
 Recommended readings:
Peter Bowal and Andy Kirsch, ‘The World’s Legal Systems’ (November -
December 2010) Law Now
Carl Stynchin and Linda Mulcahy, Legal Methods and Systems (4th Edition,
Sweet & Maxwell 2010) Chapter 13
WEE The common law case technique
K 5 & The judiciary and law in operation 4:
6 Judicial precedent
a) The concept of precedent
The common law case technique
The judiciary and law in operation 4: Judicial precedent
b) The concept of precedent
• ‘stare decisis’ or ‘star dictis’?
• Advantages
Ratio decidendi
Obiter dicta

Judicial precedent
The concept of precedent, often referred to as the doctrine of precedent or stare
decisis, is a fundamental principle in common law legal systems. It refers to the
practice of courts and judges considering and following previous judicial decisions
when deciding current cases with similar legal issues. The doctrine of precedent
helps maintain consistency, predictability, and fairness within the legal system. Here
are key aspects of the concept of precedent:

1. Binding and Persuasive Precedent: Precedents are categorized into two

main types: binding and persuasive.
 Binding Precedent: This type of precedent is established by higher
courts within the same jurisdiction. When a higher court makes a decision on
a legal issue, lower courts within the same jurisdiction are generally bound
to follow that decision in subsequent cases with similar facts and legal issues.
This creates a hierarchy of authority within the legal system.
 Persuasive Precedent: Persuasive precedents are decisions from
courts outside the jurisdiction or from lower courts within the same
jurisdiction. While not binding on the court, persuasive precedents can be
considered by judges when making their decisions. The weight given to
persuasive precedents depends on factors such as the persuasiveness of the
reasoning and the similarity of the cases.
2. Hierarchy of Courts: In a typical common law system, there is a hierarchical
structure of courts. Higher courts, such as appellate courts and supreme courts, have
the authority to set binding precedents, which must be followed by lower courts,
including trial courts.
3. Stare Decisis: Stare decisis is a Latin term meaning "to stand by things

16
 decided." It encapsulates the idea that courts should generally adhere to established
precedents. This doctrine promotes consistency and stability in the law.
4. Overruling and Distinguishing Precedent: Although the principle of
precedent is strong, it is not absolute. Courts may have the authority to overrule
their own previous decisions or those of lower courts if they believe a previous
decision was wrongly decided. Additionally, courts can distinguish a case from a
precedent if they find that the facts or legal issues are sufficiently different.
5. Evolution of the Law: Precedent allows the law to evolve gradually over
time. As new cases arise and are decided, they can modify or refine existing legal
principles. Higher courts can provide clarification or make changes to the law
through their decisions.
6. Predictability and Fairness: Precedent provides a degree of predictability in
the legal system, as parties involved in legal disputes can anticipate the likely
outcome based on prior decisions. It also promotes fairness by treating similar cases
similarly.
7. Exceptions and Departures: In certain situations, courts may depart from
precedent if they determine that the precedent is inconsistent with higher legal
principles, societal changes, or evolving legal norms. This departure is typically
based on strong justifications and considerations of justice.
8. Jurisdictional Variations: Precedent operates within the confines of each
jurisdiction's legal system. Different countries and states may have their own systems
of precedent, and the weight given to precedent can vary.

The concept of precedent is a cornerstone of the common law system and contributes
to the stability and adaptability of the legal framework. It ensures that legal
decisions are not arbitrary but are based on established legal principles and
reasoning.

b) The concept of precedent

The common law case technique
The judiciary and law in operation 4: Judicial precedent
b) The concept of precedent
• ‘stare decisis’ or ‘star dictis’?

"Stare decisis" is a Latin term that translates to "to stand by things decided" or "to
adhere to precedent." It is a fundamental legal principle in common law systems,
including the legal systems of many English-speaking countries, such as the United
States, the United Kingdom, and Canada. The doctrine of stare decisis emphasizes
the importance of following and respecting established legal precedents when

17
 deciding cases with similar legal issues.

Here are key points about "stare decisis":

1. Binding Precedent: "Stare decisis" primarily applies to binding precedent,

which consists of previous decisions made by higher courts within the same
jurisdiction. When a higher court (such as an appellate court or a supreme court)
issues a decision on a specific legal issue, lower courts within the same jurisdiction
are generally obligated to follow that decision when faced with similar cases. This
promotes consistency and uniformity in the application of the law.
2. Hierarchy of Courts: In a typical common law system, there is a hierarchy of
courts. Decisions made by higher courts are binding on lower courts. For example,
decisions of a supreme court are binding on all lower courts within that jurisdiction.
3. Consistency and Predictability: The doctrine of stare decisis ensures that the
law remains consistent and predictable. Parties involved in legal disputes can
reasonably anticipate the outcome of their cases based on established legal
precedents.
4. Overruling Precedent: While the principle of stare decisis is strong, it is not
absolute. Higher courts may have the authority to overrule their own previous
decisions or those of lower courts if they believe that a precedent was wrongly
decided. Overruling a precedent is typically done with careful consideration and
justifications.
5. Distinguishing Precedent: Courts can distinguish a case from a precedent if
they find that the facts or legal issues in the current case are sufficiently different
from those in the precedent. In such cases, the precedent does not apply, and the
court may make a new decision.
6. Legal Evolution: "Stare decisis" allows for the gradual evolution of the law.
As new cases are decided, they can modify or refine existing legal principles,
adapting the law to changing societal norms and values.
7. Legal Certainty: The doctrine of stare decisis provides legal certainty and
promotes the rule of law by ensuring that decisions are not arbitrary but are based
on established legal principles and reasoning.
8. Jurisdictional Variations: The application and weight given to precedent can
vary between different jurisdictions and legal systems. Each jurisdiction may have its
own rules and standards for following and interpreting precedent.

In summary, "stare decisis" is a legal principle that underscores the importance of

adhering to established legal precedents when deciding cases. It contributes to the
stability, consistency, and predictability of the legal system and helps maintain the
rule of law.

• Advantages of stare decisis

Stare decisis, the doctrine of adhering to precedent, offers several advantages within
a legal system. These advantages contribute to the stability, predictability, and

18
 fairness of the legal system, and they help ensure consistency in the application of
the law. Here are some of the key advantages of stare decisis:

1. Consistency and Predictability: Stare decisis promotes consistency in legal

decisions by requiring that similar cases be decided in a similar manner. This
predictability allows individuals and businesses to anticipate the likely outcomes of
their legal disputes, which is essential for making informed decisions.
2. Fairness and Equal Treatment: The principle of stare decisis ensures that
similarly situated parties are treated equally under the law. It prevents arbitrary or
capricious decision-making by requiring judges to follow established legal principles
and precedents.
3. Legal Certainty: Legal certainty is essential for the rule of law. Stare decisis
provides a degree of legal certainty by ensuring that legal principles and rules are not
subject to frequent and unpredictable changes. This benefits individuals, businesses,
and society as a whole.
4. Judicial Efficiency: Stare decisis can contribute to judicial efficiency by
streamlining decision-making. Instead of reanalyzing every legal issue from scratch,
courts can rely on existing precedent when the facts and legal issues are similar. This
can help manage caseloads and reduce the burden on the judicial system.
5. Respect for Precedent: Adhering to precedent promotes respect for the
authority of higher courts and the rule of law. It reinforces the idea that court
decisions are not arbitrary but are based on established legal principles.
6. Legal Evolution: Stare decisis allows for the gradual evolution of the law in
response to changing societal norms, values, and circumstances. New decisions can
modify or refine existing legal principles over time.
7. Checks on Judicial Activism: Stare decisis can act as a check on judicial
activism, as it encourages judges to respect and follow existing legal precedents
rather than pursuing personal or ideological agendas.
8. Legal Clarity: Precedent provides clarity on how the law is applied in
practice. It helps answer legal questions and resolve uncertainties by referring to past
decisions that have already addressed similar issues.
9. Balancing the Interests of Finality and Flexibility: While stare decisis
promotes consistency, it also allows for changes or corrections when a prior decision
is clearly erroneous or when societal values have shifted. This balancing act between
finality and flexibility is important for the development of the law.
10. Respect for the Principle of Legal Precedent: The principle of legal
precedent is deeply ingrained in the legal culture of many countries with common
law systems. It fosters respect for the authority of past decisions and the
contributions of legal scholars and judges.

It's important to note that while stare decisis offers numerous advantages, it is not an
inflexible rule. Courts may depart from precedent under certain circumstances, such
as when a prior decision is found to be erroneous, when societal values have
significantly changed, or when the interests of justice require a departure. Such
departures are typically made with care and well-justified reasoning.

19
 Ratio decidendi

Ratio decidendi is a Latin term used in legal contexts, especially in the field of
common law, to refer to the "reason for the decision" or the "ratio" of a judicial
decision. It is a crucial concept in legal reasoning and serves as the legal principle
or rationale upon which a court's decision is based.

When a court issues a written opinion or judgment in a case, it often contains

various elements, including the facts of the case, the issues raised, the arguments
presented by the parties, and the court's final decision or verdict. Within this
decision, the ratio decidendi represents the key legal principle or reasoning that led
the court to reach its conclusion.

The ratio decidendi essentially provides guidance and establishes precedent for
future cases with similar legal issues. It is the part of the decision that lower courts
are bound to follow and apply in their own decisions. In contrast, obiter dicta (Latin
for "other things said") refers to statements or observations in a court's decision that
are not essential to the decision and are not binding as legal precedent.

In summary, the ratio decidendi is the legal principle or reasoning at the core of a
court's decision that sets the precedent for similar cases and helps to guide the
interpretation and application of the law.

Obiter dicta

Obiter dicta is a Latin term used in legal contexts to refer to "other things said" in a
court's decision that are not essential to the court's final decision or the ratio
decidendi (the reason for the decision). These are statements, comments, or
observations made by the judge or judges in the course of their opinion but are not
directly relevant to the specific legal issues presented in the case. Unlike the ratio
decidendi, obiter dicta are not binding as legal precedent.

Obiter dicta can take the form of commentary, hypothetical scenarios, expressions of
personal opinion, or discussions of legal principles that are not directly related to
the specific facts and issues before the court. While they may be interesting or
insightful, they do not carry the same weight as the ratio decidendi in guiding future

20
 legal decisions.

Legal practitioners and scholars often distinguish between the ratio decidendi and
obiter dicta in court opinions to determine which parts of a decision are legally
binding and which are not. The ratio decidendi is considered the authoritative and
binding part of the decision, while obiter dicta are considered persuasive but non-
binding. However, obiter dicta can still be valuable for legal analysis and
discussion, and they may influence future legal developments even if they are not
legally binding precedent.

General principles of interpretation

Approaches to Statutory Interpretation
1) What is Statutory Interpretation n?

Statutory interpretation is the process by which courts and legal authorities interpret and
apply the meaning of statutes or written laws. It is a fundamental aspect of the legal system,
as statutes are a primary source of law in many legal jurisdictions.

Here are some key points about statutory interpretation:

1. Statutes: Statutes are laws enacted by legislatures, including federal, state, or local
governments. They are typically written in a formal and often technical language. Statutory
interpretation is necessary because statutes cannot always foresee every situation or provide
detailed instructions for every circumstance.
2. Purpose: The purpose of statutory interpretation is to determine the intent of the
legislature when they passed a particular law. This involves understanding what the words of
the statute mean and how they should be applied to specific cases.
3. Methods: There are various methods and principles that courts and legal authorities

21
 use for statutory interpretation. Some common methods include:
 Literal Interpretation: Interpreting the statute's plain and ordinary
meaning based on the words used.
 Mischief Rule: Identifying the problem or "mischief" that the statute was
intended to address and interpreting it in a way that remedies that problem.
 Golden Rule: Using a common-sense approach to avoid absurd or
unreasonable outcomes while still adhering to the statutory language.
 Purposive Interpretation: Focusing on the underlying purpose or policy
objectives of the statute to guide interpretation.
 Contextual Interpretation: Considering the statute in the context of related
laws, legislative history, and societal changes.
4. Precedent: Prior court decisions on the interpretation of similar statutes can
establish legal precedent, which can guide future interpretations.
5. Ambiguity: Statutory interpretation often arises when a statute's language is unclear
or ambiguous. In such cases, courts must make reasoned judgments to determine the statute's
meaning.
6. Legislative Intent: In many cases, the courts seek to determine the legislative intent
or purpose behind a statute. This can involve reviewing legislative debates, committee
reports, and other documents to understand what the legislature intended to accomplish with
the law.
7. Judicial Discretion: Courts have some discretion in interpreting statutes, but they
must do so within the bounds of the law and established principles of interpretation.

Statutory interpretation is a complex and important aspect of the legal system, as it ensures
that laws are applied consistently and fairly and that they remain relevant in a changing
society. Courts play a central role in this process by interpreting and clarifying the meaning
of statutes when disputes arise.

2) Why is statutory interpretation necessary?

Statutory interpretation is necessary for several reasons within the legal system:

1. Clarity and Precision of Language: Statutes, or written laws, are drafted by

legislators, and the language used in these statutes can sometimes be complex,
technical, or ambiguous. Statutory interpretation helps to clarify and make sense of
the language used in statutes, ensuring that the law is understandable to those who
must comply with it, such as citizens, businesses, and government officials.
2. Changing Circumstances: The legal system operates in a dynamic
environment where societal, technological, and economic conditions constantly
evolve. Statutes, on the other hand, are relatively static once enacted. Statutory
interpretation allows the law to adapt and remain relevant to changing circumstances
by providing flexibility in applying statutes to new situations.
3. Unforeseen Situations: Legislators cannot anticipate every possible scenario
or circumstance that may arise in the future. Statutory interpretation fills the gaps in
the law by providing guidance on how statutes should be applied to situations that
were not explicitly addressed by the legislature.
4. Ensuring Fairness: Different cases can present unique facts and
circumstances, and strict adherence to the literal language of a statute may lead to

22
 unjust or unreasonable outcomes in some cases. Statutory interpretation allows
courts to consider the broader context, purpose, and intent of the law to ensure
fairness and justice in individual cases.
5. Consistency and Predictability: Statutory interpretation helps establish
legal precedents and principles that promote consistency and predictability in how
the law is applied. This is important for maintaining the rule of law and ensuring that
similar cases are treated similarly.
6. Balancing Rights and Interests: Statutory interpretation often involves
balancing competing rights, interests, and policies. Courts must weigh these factors
when interpreting statutes to arrive at a just and equitable outcome.
7. Legislative Intent: Determining the intent of the legislature when enacting a
statute is a critical aspect of statutory interpretation. It ensures that the purpose and
goals of the legislature are honored and implemented in the application of the law.
8. Avoiding Absurd Results: Some statutes, if interpreted too literally, might
lead to absurd or unreasonable outcomes. Statutory interpretation allows courts to
exercise judgment and common sense to avoid such results.

In summary, statutory interpretation is necessary to make written laws work

effectively in practice. It serves to provide clarity, adaptability, and fairness in the
legal system, allowing the law to evolve and respond to the changing needs of
society while upholding the principles of justice and the rule of law.

3) The Issue of ambiguity

The issue of ambiguity is a common challenge in statutory interpretation. Ambiguity arises

when the language of a statute is unclear, imprecise, or open to multiple interpretations.
When a statute is ambiguous, it becomes difficult to determine its precise meaning and how
it should be applied to a particular case. Addressing ambiguity is a central concern in
statutory interpretation, and courts employ various methods and principles to resolve it.
Here are some key aspects of dealing with ambiguity in statutory interpretation:

1. Types of Ambiguity: Ambiguity can take several forms, including:

 Lexical Ambiguity: This occurs when a word or phrase within the statute
has more than one accepted meaning. For example, the term "vehicle" could refer to
automobiles, bicycles, or any mode of transportation, depending on the context.
 Syntactical Ambiguity: This arises when the structure or syntax of a
sentence or provision makes it unclear how different parts of the statute relate to
each other. A misplaced comma or awkward sentence structure can lead to
syntactical ambiguity.
 Contextual Ambiguity: A statute may be clear on its own, but when
considered in the context of other statutes or legal principles, it becomes unclear or
contradictory.
 Referential Ambiguity: Sometimes, a statute may refer to external
documents or sources, and if those sources are ambiguous or subject to change, it
can introduce ambiguity into the statute.
2. Principles for Resolving Ambiguity: Courts employ various principles and

23
 approaches to resolve ambiguity, including:
 Literal Interpretation: Courts may first consider the ordinary and plain
meaning of the words used in the statute. However, this approach may not always
resolve ambiguity, especially if a word or phrase has multiple accepted meanings.
 Legislative Intent: Determining the legislative intent behind the statute is a
fundamental aspect of resolving ambiguity. Courts may examine legislative history,
committee reports, debates, and other documents to understand what the lawmakers
intended when enacting the law.
 Purpose and Policy: Courts may consider the broader purpose and policy
objectives of the statute to guide their interpretation. If one interpretation aligns
more closely with the statute's overall purpose, it may be preferred.
 Avoiding Absurd Results: Courts strive to avoid interpreting a statute in a
way that would lead to absurd, illogical, or unreasonable outcomes.
 Statutory Context: Examining the statute in the context of related laws and
the legal framework as a whole can help clarify its meaning.
 Presumption Against Ambiguity: Some jurisdictions have a presumption
against interpreting a statute as ambiguous. This means that if the language of the
statute can be reasonably construed in a clear and unambiguous manner, the court
will do so.
3. Judicial Discretion: In the face of ambiguity, courts often exercise judicial
discretion to choose the interpretation that best aligns with legal principles and fairness,
while still adhering to the rule of law.

Addressing ambiguity in statutory interpretation is a complex and nuanced task that requires
careful consideration of the specific language, context, legislative intent, and broader legal
principles. Courts play a crucial role in clarifying the meaning of ambiguous statutes and
ensuring just and equitable outcomes.

4) Duties of the Court

When a court is faced with statutory ambiguity, it has several important duties and responsibilities to
ensure a fair and just resolution of the legal issue. These duties revolve around interpreting and
applying the law in a manner that aligns with the rule of law, legislative intent, and the principles of
justice. Here are the key duties of the court in cases of statutory ambiguity:

1. Seeking Clarity: The primary duty of the court is to strive for clarity and certainty in
interpreting the statute. The court should make every effort to determine the precise meaning of the
law to avoid confusion and uncertainty in its application.
2. Consideration of Legislative Intent: One of the most important duties is to ascertain and
give effect to the legislative intent behind the statute. This involves examining legislative history,
committee reports, debates, and other relevant documents to understand what the lawmakers intended
to achieve when enacting the law.
3. Plain Meaning Rule: The court should begin by considering the ordinary and plain meaning
of the words used in the statute. If the language is clear and unambiguous, the court may rely on the
plain meaning to interpret the statute.
4. Avoiding Absurd Results: Courts have a duty to avoid interpreting a statute in a way that
would lead to absurd, illogical, or unreasonable outcomes. This principle ensures that the
interpretation aligns with common sense and the overall purpose of the law.
5. Statutory Context: The court should examine the statute in the context of related laws and
the broader legal framework. This contextual analysis can provide insights into the statute's meaning

24
 and purpose.
6. Presumption in Favor of Compliance: There is a general presumption that individuals and
entities should be able to comply with the law. When interpreting an ambiguous statute, the court
should lean towards an interpretation that allows for reasonable compliance rather than an
interpretation that makes compliance difficult or impossible.
7. Balancing Interests and Policies: In cases of ambiguity, the court may need to balance
competing interests, rights, and policies to arrive at a just and equitable interpretation. This can
involve considering the broader societal implications of different interpretations.
8. Judicial Discretion: Courts often exercise judicial discretion in interpreting ambiguous
statutes. While the law guides their interpretation, judges have some latitude to make reasoned
judgments based on the specific circumstances of the case.
9. Consistency with Precedent: Courts should consider existing legal precedent and decisions
on similar issues to ensure consistency in the application of the law. Precedent can provide guidance
in resolving ambiguity.
10. Clear and Well-Reasoned Opinions: Courts have a duty to issue clear and well-reasoned
written opinions that explain their interpretation of the statute. This not only provides guidance for the
parties involved but also helps establish legal precedent for future cases.

In summary, the duties of the court in cases of statutory ambiguity involve a careful and principled
various considerations, including
approach to interpretation. The court must balance
legislative intent, statutory language, context, and the principles of justice, to
arrive at a fair and reasonable interpretation of the law. This ensures that the
law is applied consistently and justly across different case

Recommended readings:

Carl Stynching and Linda Mulcahy, Legal Methods and Systems (4th
Edition, Sweet & Maxwell 2010) Chapter 13
Cownie Bradney and Burton, English Legal System in Context
(Oxford 2010)

WEE Continuous Assessment I: Sit In Assessment

K7

Continuous Assessment II: Group Work Assignment and Class Presentations

WEE
K8
Cannons of Constructions:

Types of Cannons of statutory interpretation

1)Textual Cannons
11)Substantive cannons
a) Literal rule

25
 b) Golden rule
c) Mischief rule
d) Interpretation according to the ‘intentions of the legislature’

judicial interpretation
1. Presumptions
 Ejusdem Generis Rule
Expressio Unius est exclusion alterius

Cannons of Constructions:

Types of Cannons of statutory interpretation

1)Textual Cannons
11)Substantive cannons

Statutory interpretation involves the application of various principles and canons to

understand and apply the meaning of statutes or written laws. Canons of statutory
interpretation are general rules or guidelines that courts and legal authorities use to help
interpret statutes consistently and accurately. There are several types of canons, including
the ones you mentioned:

1. Textual Canons:
 Plain Meaning Rule: This canon suggests that if the language of a statute is
clear and unambiguous, it should be given its plain and ordinary meaning. The
court does not delve into extrinsic evidence or legislative history in such cases.
 Last Antecedent Rule: This canon directs that a qualifying phrase or word
in a statute should be applied to the immediately preceding term unless the context
indicates otherwise.
 Noscitur a sociis: This principle means that a word is known by its
associates. When a word in a statute is unclear, it can be interpreted by looking at
the words and phrases surrounding it to understand its meaning in context.
2. Substantive Canons (also known as Substantive Canons of Construction):
 Rule of Lenity: This canon dictates that when a statute is ambiguous or
unclear in a criminal context, it should be interpreted in favor of the defendant. It
ensures that individuals are not subjected to criminal liability unless the law is
explicit.
 Presumption Against Preemption: In cases where federal and state laws
potentially conflict, this canon favors a reading of the federal law that avoids
preemption of state law. It ensures that states retain as much regulatory authority as
possible.
 Presumption in Favor of Constitutional Validity: Courts often presume
that a statute is constitutional and try to interpret it in a way that avoids
constitutional issues or conflicts.
 Doctrine of Avoidance: When a statute's interpretation could lead to a
constitutional challenge, courts may choose an interpretation that avoids the
constitutional issue.

These are just a few examples of the textual and substantive canons of statutory

26
 interpretation. There are many other canons and principles that courts may employ
depending on the specific circumstances and legal issues involved in a case. The goal of
these canons is to provide a framework for judges to analyze and interpret statutes
consistently, fairly, and in accordance with the law.

e) Literal rule

The Literal Rule is one of the canons or principles of statutory interpretation used by courts
and legal authorities to determine the meaning of statutes or written laws. It is a method of
interpretation that focuses primarily on the plain and ordinary meaning of the words used in
the statute, without delving into extrinsic evidence or considering the legislative intent or
purpose behind the law. Here are key points about the Literal Rule:

1. Literal Interpretation: The Literal Rule emphasizes that the words of a statute
should be given their natural and grammatical meaning, as understood in everyday
language. This means that if the language of the statute is clear and unambiguous, it should
be interpreted exactly as written.
2. Avoidance of Extraneous Factors: Under the Literal Rule, courts generally do not
consider external factors such as legislative history, committee reports, or debates when
interpreting a statute. The focus is solely on the text of the law.
3. Presumption of Legislative Precision: The Literal Rule operates on the presumption
that legislators choose their words carefully, and if the language used in the statute is clear,
there is no need to look beyond it for meaning.
4. Application: The Literal Rule is typically applied in situations where the statute's
language is clear and unambiguous. When the words of the law have a plain and
straightforward meaning, the Literal Rule suggests that the court should apply them as
written.
5. Criticism and Limitations: Critics of the Literal Rule argue that it can lead to unjust
or absurd results in cases where the plain meaning of the words does not align with the
legislative intent or purpose of the law. In such cases, a strict application of the Literal Rule
may not serve the interests of justice or fairness.
6. Balance with Other Canons: While the Literal Rule is one approach to statutory
interpretation, it is not the only one. Courts often balance it with other canons, such as the
purposive approach or the Golden Rule, to ensure that the interpretation of the law is just
and reasonable, especially in situations where the literal interpretation would lead to
unintended or unreasonable outcomes.

In summary, the Literal Rule is a principle of statutory interpretation that gives primacy to
the plain and grammatical meaning of the words in a statute. However, it is not always
applied rigidly, and courts may consider other factors and canons when interpreting statutes
to ensure that the result is consistent with the legislative intent and the broader principles of
justice and fairness.

f) Golden rule

27
 The Golden Rule is another canon or principle of statutory interpretation used by courts and
legal authorities to interpret statutes or written laws. It is a method of interpretation that
allows for flexibility when the strict application of the literal rule could lead to absurd,
unreasonable, or unintended outcomes. Here are key points about the Golden Rule:

1. Flexibility in Interpretation: Unlike the Literal Rule, which emphasizes a strict and
narrow interpretation based solely on the plain and ordinary meaning of the statute's words,
the Golden Rule allows for a more flexible approach.
2. Avoidance of Absurd Results: The Golden Rule is applied when the literal
interpretation of a statute would lead to absurd or unreasonable results. Courts use this rule
to avoid outcomes that are clearly not intended by the legislature.
3. Two Variants: There are two variants of the Golden Rule:
 Narrow Golden Rule: In the narrow version, the court may modify or
extend the meaning of a word or phrase in the statute to avoid absurdity. For
example, if a statute prohibits the "carriage of goods," and a strict literal
interpretation would exclude electronic transfers of goods, the narrow Golden Rule
might be applied to include electronic transfers.
 Broad Golden Rule: In the broad version, the court may go further and
even replace words in the statute with others to make it workable. This is done when
there is no possible interpretation of the literal language that would avoid absurdity.
4. Balancing Act: The application of the Golden Rule involves a balance between
respecting the legislative text and ensuring that the law's purpose is fulfilled in a rational
and just manner.
5. Limited Use: The Golden Rule is typically applied sparingly and as a last resort
when the literal interpretation would clearly lead to an unreasonable result. It is not used as
a routine method of interpretation but rather in exceptional cases.
6. Legislative Intent: While the Golden Rule allows for some departure from the strict
literal interpretation, it still aims to honor the legislative intent and purpose behind the
statute. Courts use this rule to align the statute with what they believe the legislature
intended to achieve.
7. Criticism and Disagreements: The application of the Golden Rule can be subjective,
as judges must determine what constitutes an absurd or unreasonable result. This can lead
to disagreements among judges and scholars about when and how the rule should be used.

In summary, the Golden Rule is a principle of statutory interpretation that provides courts
with a degree of flexibility to avoid absurd or unreasonable outcomes when interpreting
statutes. It allows judges to depart from the strict literal interpretation of statutory language
to ensure that the law is applied in a manner that aligns with the intended purpose and
avoids unintended and unjust results.

g) Mischief rule

The Mischief Rule is one of the canons or principles of statutory interpretation used by
courts to understand the meaning and purpose of statutes or written laws. It is a method of
interpretation that seeks to identify and address the "mischief" or problem that the
legislature intended to remedy when enacting the law. Here are key points about the

28
 Mischief Rule:

1. Historical Context: The Mischief Rule looks at the historical or legal context that
led to the enactment of the statute. It aims to uncover the specific problem or issue that the
legislature sought to address when passing the law.
2. Addressing the Mischief: Instead of focusing solely on the literal meaning of the
statute's words, the Mischief Rule directs the court to interpret the law in a way that
remedies the identified problem or "mischief." This means that the court may go beyond the
literal language to achieve the legislative intent.
3. Balancing Act: The Mischief Rule involves a balance between respecting the plain
meaning of the statute and addressing the legislative purpose. It allows the court to depart
from a strict literal interpretation if doing so aligns with the legislature's intent and
addresses the identified problem.
4. Legislative History: To apply the Mischief Rule effectively, courts often examine
legislative history, including debates, committee reports, and other relevant documents, to
understand the historical context and the specific issue or mischief the law was meant to
resolve.
5. Avoidance of Absurdity: Like the Golden Rule, the Mischief Rule aims to avoid
absurd or unreasonable results by interpreting the statute in a way that makes sense in light
of the legislative purpose.
6. Limited Use: The Mischief Rule is not applied as frequently as the Literal Rule or
other canons of interpretation. It is typically employed in cases where the statute's purpose
is not clear from the plain language, or when applying the literal interpretation would lead
to outcomes inconsistent with the legislative intent.
7. Judicial Discretion: The application of the Mischief Rule often requires judges to
exercise discretion in determining the scope of the identified mischief and how best to
remedy it within the boundaries of the law.
8. Purpose-Oriented: The Mischief Rule is purpose-oriented, aiming to fulfill the
legislative purpose rather than just adhering to the words of the statute. It is often associated
with a broader, more purposive approach to statutory interpretation.

In summary, the Mischief Rule is a principle of statutory interpretation that directs courts to
look beyond the literal language of a statute and consider the historical context and
legislative intent to identify and address the specific problem or mischief that the law was
meant to resolve. It is used when interpreting statutes to ensure that the law achieves its
intended purpose and that absurd or unjust outcomes are avoided.

h) Interpretation according to the ‘intentions of the legislature’

Interpretation according to the "intentions of the legislature" is a fundamental approach to

statutory interpretation that focuses on determining and giving effect to the actual intent or
purpose of the legislative body (such as a legislature or parliament) when enacting a
particular statute or law. This approach is also often referred to as the "purposive
approach" to statutory interpretation. Here are key points about interpreting statutes
according to the intentions of the legislature:

1. Legislative Intent: The core idea behind this approach is that the primary goal of
statutory interpretation is to ascertain what the legislature intended to achieve with the law

29
 in question. This involves understanding the underlying policy objectives and the problem or
issue that the legislature sought to address.
2. Focus on Purpose: When applying the intentions of the legislature approach, courts
emphasize the broader purpose or policy goals of the statute rather than a strict adherence
to the literal wording of the law. The focus is on why the law was enacted and what it was
meant to accomplish.
3. Legislative History: To discern legislative intent, courts may examine a range of
materials related to the enactment of the law, including legislative history, debates,
committee reports, and statements by lawmakers. These sources provide insights into the
thinking and motivations of the legislature.
4. Balancing Act: The approach requires a balance between respecting the language
of the statute and achieving the legislative purpose. While the text of the statute is important,
it is viewed in the context of its intended effect.
5. Avoiding Absurd Results: Interpreting a statute according to legislative intent aims
to avoid absurd or unintended outcomes. If a strict literal interpretation would lead to
results contrary to the legislative purpose, the court may depart from a literal reading.
6. Application in Borderline Cases: The approach is often employed in cases where
the statute's meaning is not entirely clear from its text or where applying the plain meaning
would lead to incongruous results.
7. Interplay with Other Canons: The intentions of the legislature approach is one of
several canons or principles of statutory interpretation. It may be used in conjunction with
other canons, such as the Mischief Rule or the Golden Rule, to arrive at a comprehensive
interpretation.
8. Consistency with Democracy: This approach is seen as consistent with democratic
principles because it seeks to uphold the will of the elected representatives (the legislature)
in shaping public policy through law.

In summary, interpreting statutes according to the intentions of the legislature or the

purposive approach places the emphasis on understanding and giving effect to the
legislative purpose and policy objectives behind a law. It is an approach that recognizes the
dynamic and evolving nature of the law and aims to ensure that statutes are interpreted in a
way that aligns with the intended goals of the legislature while promoting fairness and
justice.

Recommended readings:

Tudor Jackson, The Law of Kenya ( 3rd Edition, Kenya Literature Bureau 1998) Chapter 5
(pages 72-74)

WEE Introduction to Legal Drafting

K9  What is Legal Drafting

30
  General Rules of Legal Drafting
 The Objectives of Legal Document s

Recommended readings:
Cavendish Legal Drafting Skills Series 2nd
Edition, Elmer Doorman & Charles
Drafting Of Commercial Contracts And
Agreements Handout

WEE
K 10 The Court Structure in the Kenyan Legal System
& 11  Establishment, composition & jurisdiction
 The Supreme Court
 The Appellate Courts
 The High Court
 Magistrate Courts
 Tribunals

 Alternative dispute resolution mechanisms

Recommended readings:
The Constitution of Kenya, 2010
The Appellate Jurisdiction Act, Chapter 9 of the Laws of Kenya
The Magistrate’s Courts Act, No. 26 of 2015
The Supreme Court Act, No. 7 of 2011
The Kadhis Court Act, Chapter 11 of the Laws of Kenya
The Employment and Labour Relations Court Act, Chapter 234 B of the Laws of
Kenya
The Environment and Land Court Act No. 19 of 2011
Peter Mugambi, Introduction to Law (Law Africa) Chapter 3
Dr Kariuki Mbugua, ‘Heralding a New Dawn: Achieving Justice through Effective
Application of ADR in Kenya’ (2003) Vol 1 Issue 1 ADR pages 40 – 75

WEE The Nature of the Kenyan Legal System: An Introduction

K 12  Doing justice in the Kenyan legal system
 Law making institutions in Kenya
 National & County Legislature
 The Courts System
 The role of a lawyer in the Kenyan legal system

Recommended readings:
The Constitution of Kenya, 2010

31
 County Governments Act, 2012
Tudor Jackson, The Law of Kenya ( 3rd Edition, Kenya Literature Bureau 1998)
Chapter 3

WEE Professional Legal Education

K 13  Objectives
 The institutions and process
 Regulation

Recommended readings:
Advocates Act, Chapter 16 of the Laws of Kenya (Revised Edition 2016)
The Legal Education Act No. 27 of 2012.
Law Society of Kenya Act, 2014
The Kenya School of Law Act, 2012
Tudor Jackson, The Law of Kenya ( 3rd Edition, Kenya Literature Bureau, 1998)
Chapter 13
William Burnett Harvey, An Introduction to the Legal System in East Africa (Kenya
Literature Bureau 1975) Chapter 1
Patricia Kameri-Mbote, ‘Legal Education and Lawyers’ in Yash Pal Ghai and Jill
Cottrell Ghai (eds), ‘The Legal Profession and the New Constitutional Order in
Kenya’ (Strathmore University 2014).
Dr. Jacob Kariuki Gakeri, ‘Enhancing Legal Education in East Africa:
Contextualizing the Role of the Legislature, Council of Legal Education and the
Judiciary in Kenya’ (2016) 6 International Journal of Humanities and Social
Sciences.
Eunice Cecilia Maema v Council of Legal Education and 2 Others (Civil Appeal 121
of 2013)
Adrian Kamotho Njenga v Kenya School of Law (Constitutional Petition 398 of
2017)
Kevin Mwiti & Others v Kenya School of Law and others (Constitutional Petition
377 of 2015)

WEE Public Legal Awareness and Legal Aid

K 14  Concept of legal awareness
 Legal Aid and Representation
 Existing Initiatives
 State Initiatives
 Civil Society Initiatives

Recommended readings:
The Constitution of Kenya, 2010

32
 The Legal Aid Act, No. 6 of 2016
Martin Partington, Introduction to the English Legal System (Oxford University
Press 2015) Chapter 9 & 10

Wrap up the Course and Revision

WEE
K 15

WEE Exams
K 16
& 17

33
CORE TEXT MATERIAL:
Carl Stynchin and Linda Mulcahy, Legal Methods and Systems (4th Edition, Sweet &
Maxwell 2010)
Glanville Williams, Learning the Law (Sweet & Maxwell 2010)
Martin Partington, Introduction to the English Legal System (Oxford University Press 2015)
Peter Mugambi, Introduction to Law (Law Africa Publishing Limited 2011)
Tudor Jackson, The Law of Kenya (3rd Edition, Kenya Literature Bureau, 1998)
William Burnett Harvey, An Introduction to the Legal System in East Africa (Kenya
Literature Bureau 1975)

STATUTES
The Advocates Act, Chapter 16 of the Laws of Kenya (Revised Edition 2016)
The Legal Education Act No. 27 of 2012
The Law Society of Kenya Act, 2014
The Kenya School of Law Act, 2012
The Constitution of Kenya, 2010
The Legal Aid Act, No. 6 of 2016
The Appellate Jurisdiction Act, Chapter 9 of the Laws of Kenya
The Magistrate’s Courts Act, No. 26 of 2015
The Supreme Court Act, No 7 of 2011
The Judicature Act, Chapter 8 of the Laws of Kenya
The County Governments Act, 2012
The Kadhis Court Act, Chapter 11 of the Laws of Kenya
The Employment and Labour Relations Court Act, Chapter 234 B of the Laws of Kenya
The Environment and Land Court Act No. 19 of 2011

SIGNED

Unit Lecturer: Rosemary Kamathi

APPROVED BY:

HEAD OF DEPARTMENT: ……………………………………… DATE:

……………………………………………..

DEAN, SCHOOL OF LAW:……………………………………… DATE:

……………………………………………..

34