SOURCES OF LAW

General Rules of International Law

The various sources of law of Kenya are identified by:

1. Judicature Act
2. Constitution
3. Hindu Marriage and Divorce Act
4. Hindu Succession Act
5. Kadhis Court Act.

Sources identified by the Judicature Act

1. The Constitution
2. Legislation (Act of Parliament) (Statutes)
3. Delegated legislation
4. Statutes of General Application
5. Common Law
6. Equity
7. Case law or (judge–made law)
8. Africa Customary law

Sources identified by the Constitution & the Kadhis Court Act: Islamic law

Sources identified by the Hindu Marriage and Divorce Act & The Succession Act: Hindu law

Sources of law in Kenya may be classified as:

1) Written and unwritten sources
2) Principal and subsidiary sources

Written sources of Law

The Constitution

A Constitution is a public document, which regulates the relations between the state and its citizens as
well as the relations between the organs of the state.

This is a body of the basic rules and principles by which a society has resolved to govern itself or
regulate its affairs. It contains the agreed contents at the political system. A Constitution sets out
the basic structure of government.

The Constitution of Kenya is a source of law from which all other laws derive their validity. Any law
which conflicts or is inconsistent with the Constitution is void/invalid.

Article 2 (4) of the Constitution provides ‘‘any other law is inconsistent with the Constitution, the
Constitution shall prevail, and the other law shall be to the extent of the inconsistency, be void".

Any law which is inconsistent can be passed only if the Constitution is first amended by the voles of
not less than 65% of all the members of the National Assembly and supported by Presidential assent.

Issues Addressed in the Constitution of Kenya.

The Constitution of Kenya 2010 covers the following matters:

1. That the people of Kenya are the sovereign i.e. all powers are derived from the people
 2. The supremacy of the Constitution.
3. The republic. That Kenya is an independent state with an organized government.
4. Bill of rights. It contains the fundamental rights and freedoms
5. Citizenship, i.e. how one acquires and loses citizenship.
6. Leadership and integrity under chapter six of the Constitution i.e. how morals play a
central role in leadership.
7. Representation of the people.
8. Separation of powers i.e. how the three organs of the state operate under different heads.
This includes the Legislature, Executive, and the Judiciary.
9. Devolved governments. There is a central and county government.
10. Matters of public finance.
11. Amendment of the Constitution.

Supremacy of the Constitution

• Supremacy of the Constitution is provided for under Article 2.

• All other sources of law derive their validity from the Constitution and are therefore required to be
consistent with all provisions of the Constitution
• Any source of law if inconsistent with the Constitution is null and void to the extent of its
inconsistency.
• Any act or omission in contravention of the Constitution is invalid.
• The Constitution is the supreme law of the Republic and binds all persons and all state organs at
both levels of government.
• No person may claim or exercise state authority except as authorized under the Constitution.
• The validity or legality of the Constitution is not subject to challenge by or before any court or
other state organ.
• The Constitution is also supreme since it outlines the governing structure of a country and defines
the various organs of the government.
• It gives the functions of the various arms of the government and clearly indicates the separation of
powers.
• The Constitution establishes highest office in the land i.e. office of the President and grants the
occupant power as head of state and government.
• The Constitution provides the fundamental rules and freedoms of individuals and guarantees their
protection.
• It provides procedure of its amendment within itself.

Rights

1. Right to life - Section 71(1)

2. Right to personal liberty - Section 72 (1)
3. Right to property - Section 75 (1)
4. Right to protection of law - Section 77

Freedoms

1. Freedom of conscience e.g. freedom of thought and of religion

2. Freedom of assembly and association e.g. freedom to form trade unions
3. Freedom of expression
4. Freedom from arbitrary search of a person, his property or entry into his premises
5. Freedom from slavery and servitude
6. Freedom from torture, degrading, inhuman or other punishment
7. Freedom of movement
8. Freedom from discrimination or discriminatory laws

Legislation / Acts of Parliament

Legislation is the process of law making through Parliament or any other body specially constituted
for this purpose. Legislation can be direct or indirect. Direct legislation is the law- making process by
Parliament. Law made by Parliament is known as a Statute or an Act of Parliament.

Indirect legislation is where an individual makes law through powers derived from the statute or Act,
known as an Enabling Act. This is referred to as delegated legislation e.g. by-laws made by local
authority. In Kenya, Parliament is the supreme law-making body of the country as stipulated in the
Constitution.

The law-making process begins with Bills being passed by the National Assembly.

Bills

A Bill is a draft of a proposed Act of Parliament. When a Bill has been passed by the National
Assembly then it is presented to the President for his assent. Once the assent is given, it becomes law
and is now called an Act of Parliament or statute.

Types of Bills

Bills may be classified as:

a) Public Bills
b) Private Bills
c) Private Member’s Bills

Public Bills: Public Bills deal with matters of public policy and their provisions affect the general
public. These Bills are introduced by the Cabinet Secretary concerned.

Private Bills: Private Bills are those which are intended to affect or benefit some particular person,
association or corporate body.

Private Member’s Bill: Private Member’s Bills is introduced by a private member of Parliament.
Such a member must move a motion seeking leave of the House to introduce the Bill. The member is
responsible for drafting his own bill.

The passing of a Bill into law

The Bill passes through the following stages to become law

i. First reading
ii. Second reading
iii. Committee stage
iv. Reporting stage
v. Third reading
vi. President’s Assent

Before the first reading, the Bill is published in the Kenya Gazette for information purposes. All bills
must be published in the Kenya Gazette to inform the public and Parliamentarians of the intended
law. Generally, a Bill must be published at least 14 days before introduction to the National
Assembly. However, the National Assembly Is empowered to reduce the number of days.
First reading: Under this stage, the clerk reads out only the title of the bill. No debate or vote takes
place here. After the first reading the date for the second reading is fixed. If the Bill is approved at this
stage, then it is printed and circulated among the members of Parliament to enable them to prepare for
a debate of this Bill. This is the Introductory stage of law making.

Second reading: This is the most important stage of the bill. At this stage the Cabinet Secretary or the
member in charge of the Bill explains the main feature of the Bill. A debate takes place, and the
members of the house are allowed to participate in the debate.

Committee stage: It the bill is passed at the second reading, then it moves to the committee stage.
Here the details of the various aspects contained in the bill are analyzed and scrutinized by the
committee of the whole house or a select committee which consists of some selected members of the
house.

Report Stage: After scrutiny and analysis at committee stage, the report of the same is submitted to
the house. If any amendments are made at the committee stage, the same are debated again, then the
bill moves to the third reading if approved

Third reading: Here there are no debates. A final vote is given after minimal debate, and if
approved, the bill is said to have been passed.

President’s Assent: A bill passed by the National Assembly does not become law until the President
gives his assent. The President may refuse to give his assent if in his opinion the bill does not serve
the best interest of the people. A bill becomes law as soon as it gets the President’s assent.

President’s Refusal to Assent to the Bill.

1. Within fourteen days after receipt of a Bill, the President shall assent to the Bill; or refer the Bill
back to Parliament for reconsideration by Parliament, noting any reservations that the President
has concerning the Bill.
2. If the President refers a Bill back for reconsideration, Parliament may, -amend the Bill in light of
the President’s reservations or pass the Bill a second time without amendment following the
appropriate procedures under this part.
3. If Parliament amends the Bill fully accommodating the President’s reservations, the appropriate
Speaker shall re-submit it to the President for assent.
4. Parliament, after considering the President’s reservations, may pass the Bill a second time, without
amendment, or with amendments that do not fully accommodate the President’s reservations, by a
vote supported by two-thirds of members of the National Assembly; and two-thirds of the
delegations in the Senate, if it is a Bill that requires the approval of the Senate.
5. If Parliament has passed a Bill under clause (4), the appropriate Speaker shall within seven days
re-submit it to the President; and the President shall within seven days assent to the Bill.
6. If the President does not assent to a Bill or refers it back within the period prescribed in clause (1),
or assent to it under (5) (b), the Bill shall be taken to have been assented to on the expiry of that
period as per Statute law legislation is a principal source of law applicable throughout Kenya. It
must be consistent with the Constitution. It is the most important source of law.

Advantages of Statutes Law

1. Democratic: Parliamentary law making is the most democratic legislative process. This is
because Parliaments the world over consist of representatives of the people that they consult
regularly. Statute Law, therefore, is a manifestation of the will of the people.
2. Resolution of legal problems: Statute Law enables society to resolve legal problems as and
when they arise by enacting new statutes or effecting amendments to existing Law.
3. Dynamic: Statute Law enables society to keep pace with changes in other fields e.g. political,
 social or economic. Parliament enacts statutes to create the necessary policies and the
regulatory framework.
4. Durability: Statute Law consists of general principles applicable at different times and in
different circumstances. It has the capacity to accommodate changes without requiring
amendments.
5. Consistency/Uniformity: Statute Law applies indiscriminately i.e. it regulates the conduct of
all in the same manner and any exceptions affect all.
6. Adequate publication: Compared to other sources of Law, statute Law is the most widely
published in that it must be published in the Kenya Gazette as a bill and as a Law. Additionally,
it attracts media attention.
7. It is a superior source of law in that only the Constitution prevails over it.

Disadvantages of Statute Law

1. Imposition of Law: Statute Law may be imposed on the people by the dominant classes in
society. In such a case, the Law does not reflect the wishes of the citizens, nor does it cater for
their interests.
2. Wishes of M.Ps: Statute Law may at times manifest the wishes and aspirations of M.Ps as
opposed to those of the citizenry.
3. Formalities: Parliamentary Law-making is tied to the Constitution and the National Assembly
standing orders. The Law-making process is slow and therefore unresponsive to urgent needs.
4. Bulk and technical Bills: Since Parliament is not made up of experts in all fields, bulky and
technical Bills rarely receive sufficient treatment in the national assembly, their full
implications are not appreciated at the debating stage.

Functions of Parliament
1. Controls government spending
2. Critical function
3. Legislative functions

How to make the law-making process effective

1. M.Ps should consult constituents on a regular basis.
2. Subdivision of large constituencies.
3. Establishment of offices in constituencies for M.Ps
4. Enhance civic education
5. All Bills ought to be supported by not less than 65% of all MPs so as to become Law.
6. Bills should be widely published e.g. the Kenya Gazette should be made available to larger
segments of the society. Bills must be published in newspapers

Statutes Of General Application

Kenyan Law does not define the phrase Statutes of General Application. However, the phrase is used to
describe certain Statutes enacted by the UK Parliament to regulate the citizens of the UK generally.
These Statutes are recognized as a source of Law of Kenya by Section 3 (1) (c) of the Judicature Act.
However, their application is restricted in that they can only be relied upon:
1. In the absence of an Act of Parliament of Kenya.
2. If consistent with the provisions of the Constitution.
3. If the Statute was applicable in England on or before the 12/8/1897
4. If the circumstances of Kenya and its inhabitant’s permit. Examples include:
a. Infants Relief Act, 1874
b. Married Women Property Act 1882
c. Factors Act, 1889

Statutes of general application that have been repealed in the UK are still applicable in Kenya unless
repealed by the Kenyan Parliament.

Delegated Legislation

Delegated legislation is also referred to as subsidiary (subordinate legislation). It is a law made by

Parliament indirectly.

Delegated legislation consists of rules, orders, regulations, notices, proclamations etc. made by
subordinate but competent bodies e.g.
1. Local Authorities
2. Professional bodies such as ICPA(K)
3. Statutory boards
4. Government ministers

These bodies make the laws in exercise of delegated legislative power conferred upon them by
Parliament through an Enabling or Parent Act.

Delegated legislation takes various forms e.g.

1. Local Authorities make by-laws applicable within their administrative area
2. Government ministries, professional bodies and others make rules, orders, regulations,
notices etc.

Characteristics of delegated legislation

1. All delegated legislation is made under the express authority of an Act of Parliament.
2. Unless otherwise provided, delegated legislation must be published in the Kenya Gazette
before coming into force.
3. Unless otherwise provided, delegated legislation must be laid before Parliament for
approval and Parliament is empowered to declare the delegated legislation null and void by
a resolution to that effect whereupon it becomes inoperative to that effect

Why delegated legislation?

Delegated legislation is described as a necessary evil or a Constitutional impropriety. This is because it
interferes with the doctrine of separation of powers which provides that Lawmaking is a function of
the legislature.

Parliament delegates Law-making powers to other persons and bodies for various reasons:
1. Parliament is not always in session
2. Parliament is not composed of experts in all fields
3. Inadequate Parliamentary time
4. Parliamentary Law-making is slow and unresponsive to urgent needs. Additionally it
lacks the requisite flexibility
5. Increase in social legislation

Advantages of delegated legislation

1. Compensation of lost Parliamentary time: Since members of Parliament are not always in the
National Assembly making Laws, the Law-making time lost is made good by the delegates to
whom legislative power has been given hence no Lawmaking time is lost.
2. Speed: Law-making by government Ministers, Professional bodies and other organs is faster and
therefore responsible for urgent needs.
3. Flexibility: The procedure of Law-making by delegates e.g. Government Ministers is not tied
to rigid provisions of the Constitution or other law. The Cabinet Secretary enjoys the requisite
flexibility in the Law-making process. He is free to consult other people.
4. Technicality of subject matter: Since Parliament is not composed of experts in all fields that
demand legislation, it is desirable if not inevitable to delegate Law-making powers to experts in
the respective fields e.g. Government Ministries and local authorities.

Disadvantages of delegated legislation

1. Less Democratic: Compared to statute law, delegated legislation is less democratic in that
it is not always made by representatives of the people affected by the law. E.g. rules drafted
by technical staff in a government ministry.
2. Difficult to control: In the words of Professor William Wade in his book Administrative Law
the greatest challenges posited by delegated legislation is not that it exists but that its
enormous growth has made it impossible for Parliament to watch over it. Neither
Parliament nor courts of law can effectively control delegated legislation by reason of their
inherent and operational weakness.
3. Inadequate publicity: Compared to statute law, delegated legislation attracts minimal
publicity if any. This law is to a large extent unknown.
4. Sub-delegation and abuse of power: Delegates upon whom law making has been
delegated by Parliament often sub-delegate to other persons who make the law. Sub-
delegation compounds the problem of control and many lead to abuse of power.
5. Detailed and technical: It is contended that in certain circumstances, delegated legislation
made by experts is too technical and detailed for the ordinary person.

Unwritten sources of law

Unwritten sources of law apply subject to the written sources. Written sources prevail over unwritten
sources in the event of any conflicts. This is primarily because unwritten law is generally made by a
supreme law-making body. These sources include:
1. Common Law
2. Equity
3. Case law
4. Islamic law
5. Hindu law
6. African Customary Law.

Common Law

It may be described as a branch of the law of England which was developed by the ancient Common
Law Courts from customs, usages and practice of the English people.

These courts relied on customs to decide cases before them thereby giving such customs the force of
law. The court of Kings Bench, Court Exchequer and the Court of Common Pleas are credited for
having developed Common Law.

These courts standardized and universalized customs and applied them in dispute resolution. At first,
Common Law was a complete system of rules both criminal and civil. The development of the
Common Law is traceable to the Norman Conquest of the Iberian Peninsula. The Romans are credited
for having laid the foundation for the development of the Common Law.

Characteristics of Common Law

1. Writ System.
2. Doctrine of stare decisis

1. The Writ System

At Common Law, actions or cases were commenced by a writ. There were separate writs for separate
complaints. Writs were obtained at the Royal office.

A Writ stated the nature of the compliant and commanded the police officer of the country in which
the defendant resided in to ensure that he appeared in court on the mentioned date. Often, police
officers demanded bribes to compel the defendant to appear in court and would not compel an
influential defendant.

The writ system did not recognize all possible complaints and many plaintiffs could not access the
courts. It also lengthened the judicial process.

2. Doctrine of Stare Decisis

Stare Decisis literally means decision stands or stand by the decision. This is a system of administration
of justice whereby previous decisions are applied in subsequent similar cases. At Common Law, a
judge having once decided a case in a particular manner had to decide all subsequent similar cases
similarly.

This made the Common Law system rigid. Common Law consists of decisions handed down by
courts of law on the basis of customs and usages and may be described as the English Customary
Law.

Problems/shortcomings of Common Law

1. Writ System: Cases at Common Law were commenced by a writ issued by the Royal
office. There were separate writs for different complaints. However:
a) This system did not recognize all possible complaints, and many would be plaintiffs
had no access to the courts
b) The writ system encouraged corruption
c) It lengthened the course of justice

2. Rigidity/inflexibility: The Common Law courts applied the doctrine of Stare Decisis.
This practice rendered the legal system rigid and hence unresponsive to changes.

3. Procedural technicalities: The Common Law procedure of administration of justice was

highly technical. Common Law courts paid undue attention to minor points of procedure
and many cases were often lost on procedural matters.

4. Delays: The administration of justice at Common Law was characterized by delays.

Defendants often relied on standard defenses to delay the course of justice. These defenses
were referred to as essoins and included being out by floods, being unwell or being away
on a crusade. If sickness was pleaded, the case could be adjourned for 1 year and 1 day.

5. Non-recognition of trusts: Common Law did not recognize the trust relationship. This is
an equitable relationship whereby a party referred to as a trustee, expressly, impliedly or
constructively holds property on behalf of another known as beneficiary. At Common Law
beneficiaries had no remedies against errant trustees and trustees had no enforceable rights
against beneficiaries.

6. Inadequate remedies: Common Law courts had only one remedy to offer namely
monetary compensation or damages. They could not compel performance or restrain the
same.

7. Inadequate protection of borrowers: At Common Law, a borrower who failed to

honor his contractual obligations within the contractual period of repayment would lose
 not only his security, but the total amount paid.

The Doctrines of Equity

Equity is a set of rules formulated and administered by the Court of Chancery before 1873 to
supplement the rules of Common Law. This court dealt with those cases where Common Law either
provided no remedy or provided a remedy which was not adequate. Equity therefore is a body of
principles constituting what is fair and right.

Origins of equity

Citizens dissatisfied with the decision of the judges of Common Law often made petitions to the
Kings in council. The petitions were decided by the King himself or by his council. Due to much
work, the King later delegated his function to his Lord Chancellor (advisor to the King) a clergyman
to decide the appeals applying the rules of natural justice and morality.

The petitions to the Lord Chancellor were made on the following grounds:-

1. The Common Law courts provided no remedy for certain wrongs e.g. trusts were not
recognized.
2. The remedies provided in certain situations were not satisfactory e.g. in case of breach of
contract, the only remedy available was damages, and specific performances injunctions
were not recognized.
3. The Common Law courts sometimes acted under pressure or influence or bribes of the
other party. The remedies granted by equity courts become known as equitable remedies.

Principles of Equity

During the early development of equity the early chancellors acted at their own discretion, but
eventually they did follow the decisions of early chancellors. But in the 8th century, some firm rules
of equity were established which guided later chancellor in deciding disputes. These rules are known
as equitable maxims – which are propositions or statement of equitable rules.

The Maxims of Equity include:

1. He who seeks equity must do equity
2. He who comes to equity must come with clean hands
3. Equity is equality (Equality is equity)
4. Equity looks to the intent or substance rather than the form
5. Equity regards as done that which ought to be done
6. Equity imputes an intent to fulfil an obligation
7. Equity acts in personam
8. Equity will not assist a volunteer (Equity favours a purchaser for value without notice)
9. Equity will not suffer a wrong to be without a remedy (Where there is a wrong there is a
remedy for it) Ibi jus ibi remedium
10. Equity does not act in vain
11. Delay defeats equity
12. Equity aids the vigilant and not the indolent (Vigilantibus non dorminentibus
jurasubveniunt)

The distinction between legal and equitable remedies remains relevant to students; however,
because these remedies differ to seek the proper remedy for a wrong one must know that
remedies are available.
 a) He who seeks equity must do equity
This maxim means that a person who is seeking the aid of a court of equity must be prepared to
follow the court’s directions, to abide by whatever conditions that the court gives for relief. And this is
most commonly applied in injunctions. The court will normally impose certain conditions for granting
the injunction.

b) He who comes to equity must come with clean hands

This scenario was summed up in the case of Jones v. Lenthal (1669) as He who has committed inequity
shall not have equity. There is a limit to this rule.

In some cases the court has the discretion whether to apply this maxim. Limit to the extent that
maxim can be applied. The limit is this: It is not all unclean hands that will deny a plaintiff his
remedy. The conduct must be relevant to the relief being sought.

In Loughran v. Loughran (1934), Justice Brandeis said equity does not demand that its suitors shall
have lead blameless lives. We are not concerned with issues of morality. If the breach is a trifle, a
small matter, a minor breach, then that in itself should not deny the plaintiff the remedy. The first
maxim deals with now/future, the second deals with conduct in the past.

c) Equity is equality (equality is equity)

In general, the maxim will be applied whenever property is to be distributed between rival claimants
and there is no other basis for division.

For example, husband and wife who operate a joint bank account; each spouse may deposit or take
out money. Upon divorce, the maxim applies. They share 50-50. The authority is that equity does not
want to concern itself with the activities of a husband and wife - to go into the bedroom and make
deep inquiries, hence equal division.

Another example relates to trusts. How do you divide the property? Say there are three beneficiaries.
Then one of the beneficiaries passes away, i.e. one of the shares fails to vest. What should accrue to
the surviving beneficiaries? Redistribute equally, applying the rule
Equity is equality.

d) Equity looks to the substance or intent rather than the form

This maxim makes a distinction between matters of substance and matters of form. Equity will give
priority to substance (intention) as opposed to form if there is a contradiction. This maxim is
normally applied to trusts. There have been cases where the court has inferred trust even where the
word trust does not appear.

Another illustration is the remedy of rectification of contract, where equity looks to the intention,
where intention matters.

This maxim lies at the root of the equitable doctrines governing mortgages, penalties and forfeitures.
Equity regards the spirit and not the letter.

Courts of Equity make a distinction in all cases between that which is a matter of substance and
that which is a matter of form; and if it finds that by insisting on the form, the substance will be
defeated, it holds it to be inequitable to allow a person to insist on such form, and thereby defeat
substance.

Thus if a party to a contract for the sale of land fails to complete on the day fixed for completion, by
law he is in breach of his contract and will be liable for damages e.g. for delay. Yet in equity it will
usually suffice if he is ready to complete within a reasonable period thereafter, and thus the other
party will not be able to avoid performance.
 e) Equity regards as done that which ought to be done
This maxim has its most frequent application in the case of contracts. Equity treats a contract to do
a thing as if the thing were already done, though only in favour of persons entitled to enforce the
contract specifically and not in favour of volunteers.

Agreements for value are thus often treated as if they had been performed at the time when they
ought to have been performed. For example a person who enters into possession of land under a
specifically enforceable agreement for a lease is regarded in any court which has jurisdiction to
enforce the agreement as if the lease had actually been granted to him.

In Walsh v. Lonsdale, the agreement for lease was as good as the agreement itself where a seven-
year lease had been granted though no grant had been executed. An equitable lease is as good as a
legal lease. Equity looked on the lease as legal the time it was informally created.

In Souza Figuerido v. Moorings Hotel it was held that an unregistered lease cannot create any
interest, right or confer any estate which is valid against third parties. However, it operates as a
contract inter-party; it is valid between the parties and can be specifically enforced. The tenant in this
case was therefore liable to pay rent in arrears.

f) Equity imputes an intent to fulfill an obligation

If a person is under an obligation to perform a particular act and he does some other act which is
capable of being regarded as a fulfilment of this obligation, that other act will prima facie be regarded
as fulfilment of the obligation.

g) Equity acts in personam

This is a maxim which is descriptive of procedure in equity. It is the foundation of all equitable
jurisdictions.

Courts of law enforced their judgments in Rem (against property of the person involved in the
dispute), e.g. by writs but the originally equitable decrees were enforced by Chancery acting against
the person of the defendant (i.e. by imprisonment) and not in Rem Later, equity invented the
alternative method of sequestrating the defendant’s property until he obeyed the decree.

These methods can still be used where necessary, but other and more convenient methods are often
available today.

Although the maxim has lost much of its importance, it is responsible for the general rule that an
English court has jurisdiction in equitable matters, even though the property in dispute may be situated
abroad, if the defendant is present in this country. This was so held in Penn v. Baltimore where the
Defendant was ordered to perform a contract relating to land in America. However there must be
some equitable right arising out of contract, trust or fraud.

h) Equity will not assist a volunteer

Equity favours a purchaser for value without notice. A volunteer is a person who has not paid
consideration.

The exception to the application of this maxim is in Trust. In Jones v. Lock (1865) it was stated
that the court is prevented from assisting a volunteer regardless of how undesirable the outcome
might appear. Equity will therefore not grant specific performance for a gratuitous promise.

i) Equity will not suffer a wrong to be without a remedy

Ibis jus ibi remedium: This means that if there is a wrong, there is a remedy for it. He who seeks solace
in the arms of equity will not go away broken hearted.
No wrong should be allowed to go unredressed if it is capable of being redressed by equity. However,
not all moral wrongs can be redressed by equity. The maxim must be taken as referring to rights which
are suitable for judicial enforcement but were not enforced at Common Law owing to some technical
defect.

j) Equity does not act in vain

The court of equity is shy and does not want to be embarrassed by granting remedies that cannot be
enforced or issuing orders that cannot be obeyed by the Plaintiff.

k) Delay defeats equity or equity aids the vigilant and not the indolent: (vigilantabus, non
dormientibus, jura subveniunt)

A court of equity has always refused aid to stale demands i.e. where a party has slept on his right and
acquiesced for a great length of time. Nothing can call forth this court into activity, but conscience,
good faith, and reasonable diligence. Where these are wanting, the Court is passive and does nothing.

Delay, which is sufficient to prevent a party from obtaining an equitable remedy, is technically called
laches.

This maxim, however, has no application to cases to which the Statutes of Limitation apply either
expressly or, perhaps, by analogy. There are thus three cases to consider-

a) Equitable claims to which the statute applies expressly.

b) Equitable claims to which the statute is applied by analogy; and
c) Equitable claims to which no statute applies, and which are, therefore, covered by the
ordinary rules of laches.

l) Equity follows the law

The Court of Chancery never claimed to override the courts of Common Law. Where a rule, either of
the common or the statute law, is direct, and governs the case with all its circumstances, or the
particular point, a court of equity is as much bound by it as a court of law and can as little justify a
departure from it.

It is only when there is some important circumstance disregarded by the Common Law rules that
equity interferes. Equity follows the law, but neither slavishly nor always. If Common Law and Equity
conflict, Equity prevails.

Both Common Law and Equity are recognized as sources of law of Kenya under section of the
Judicature Act. However, only the substance of Common Law and the doctrines of equity are
recognized. Their application by Kenyan Courts is further qualified. A court of law can only rely on
Common Law or equity as a source of Law:

1. In the absence of an Act of Parliament.

2. If it is consistent with written law including the Constitution.
3. If it was applicable in England on 12/08/1897.
4. If the circumstances of Kenya and its inhabitants permits.
5. Subject to such qualifications as those circumstances may render necessary.

African Customary Law

African Customary Law may be described as the law based on the customs of the ethnic groups
which constitute Kenya’s indigenous or Africa population.
Section 3(2) of the Judicature act provides as follows:

The High Court and all subordinate court shall be guided by African Customary
Law in civil cases in which one or more of the parties is subject to it, or affected
by it, so far is applicable and is not repugnant to justice and morality or
inconsistent with any written law and shall decide all such cases according to
substantial justice without undue regard to technicalities of procedure and
without any delay.

For a custom to be relied upon as law, it must have certain characteristics:

1. Reasonableness: A good local custom must be reasonable i.e. it must be consistent with the
principle of justice. Whether or not a custom is reasonable is a question of facts to be
determined by the courts.
2. Conformity with statute law: A local custom must be consistent with Parliament made law.
This is because Parliament is the principle law-making body and has Constitutional power to
disqualify the application of any rule of custom.
3. Observation of right: A good local custom is that which a society has observed openly and as of
right i.e. not by force or by stealth nor at will.
4. Immemorial antiquity: A custom must have been observed since time immemorial. Time
immemorial means that no living person can attest as to when the custom did not exist.

The application of African Customary Law is however limited as follows:

a) The courts are to be guided by African Customary Law.

This provision gives the judge/magistrate discretion whether to allow a particular rule of customary
law to operate or not. The judge is not bound to apply any rule of customary law and can refuse to
apply it if, for example, if is repugnant to justice.

In the case of Wambui Otieno – Vs. – Joash Ougo and Umira Kager Clan the court of appeal stated
that the provision that courts are to be guided by African Customary Law means that courts must
have in mind African customs (unless it is repugnant to justice and morality or inconsistent with a
written law)

b) The law is applicable only in civil cases

The District Magistrate’s Court Act 1967 sec 2 restricts cases to which African Customary Law may
be applied to claims involving any of the following:
i. Land held under customary law
ii. Marriage, divorce, maintenance or payment of dowry.
iii. Seduction or pregnancy of an unmarried woman or girl
iv. Matters affecting status, particularly the status of women, widows and children, including
guardianship, custody, adoption and legitimacy.
v. Intestate succession and administration of intestate, so far as it is not governed by any written
law.

c) One of the parties must be subject to it or affected by it.

If the plaintiff and the defendant belong to some ethnic group they are said to be subject to the customs
of the ethnic group which could then be applied to settle the dispute e.g. a dispute between luos
cannot be settled under kikuyu customs.
 d) Customary law will only be applied if it is not repugnant to justice and morality.

In the case of Maria Gisese Angoi – vs. – Marcella Nyomenda Civil Appeal No. 1 of 1981 at Kisii the
High Court held that:
The Kisii customary law which allows a widow has no children or who has only
female children to enter into an arrangement with a girl’s parents and take the girl
to be her wife and then choose a man from amongst her late husband’s clan who
will be fathering children for her (i.e. the widow) was repugnant to justice because
it denied the alleged wife the opportunity of freely choosing her partner.

e) The customary law will be applied only if it is not inconsistent with any written law.

This is because of the Supremacy of the Constitution and the fact that written laws are made by
Parliament either directly or indirectly. If any unwritten law e.g. African Customary Law is in conflict
with a clause in a written law, the unwritten law will cease the force of law from the moment the
written law comes into effect.

Islamic Law

This is the law based on the holy Koran and the teaching of the prophet Mohammed. This law is
applicable in Kenya under article 170, clause 5 of the Constitution and then section 5 of the Kadhi’s
court act 1967 when it is necessary to determine question of Muslims law relating to Personal status,
Divorce Marriage and Inheritance and the parties in the case profess the Muslim religion and submit
to the jurisdiction of the Kadhi’s courts.

Hindu Customs

It is applicable under section 5 of Hindu Marriage and Divorce Act, 1960. Section 2 of the Act defines
a custom as a rule which, having been continuously observed for a long time, has attained the force of
law among a community group or family being a rule that is certain and not unreasonable, or opposed
public policy, and in the case of a rule applicable only to a family, has not been discontinued by the
family.

Case Law and Judicial Precedent

In deciding cases or disputes, judges of lower courts follow the decision of the higher court if a case
involving similar facts and points of law comes before them.

The principle of stare decisis (Latin meaning to stand on decided cases) or judicial precedent is a
legal rule that inquires a judge hearing a case to refer to earlier cases decided by his predecessors in
order to find out if the material facts of any of those cases before him and, in the event of such
finding, to decide the case before him in the same way as the earlier case had been decided.

Thus principle was developed by the English courts as a mechanism for the administration of justice
which will enable judges to make decisions in an objective or standard manner instead of subjectively
and in a personalized manner. The material facts of a case and the decision made by the judge on the
basis of those facts are known as ratio decidendi of the case.

The ratio decidendi of a decided case constitutes the legal rule or principle for the future case with
similar material facts i.e. the decision is precedent to be followed when deciding such cases (We shall
come to this aspect at a later stage – the Administration of the Law)

Precedents may be classified in various ways:

1. Binding and persuasive precedents
 2. Original and declaratory precedents
3. Distinguishing precedents

Original precedents
This is a principle or proposition of law as formulated by the court. It is the law-creating precedent.

Declaratory Precedent
This is the application of an existing principle of law in a subsequent similar case.

Binding precedent
This is an earlier decision which binds the court before which it is relied upon. E.g. a precedent of the
Court of Appeal used in the High Court.

Persuasive Precedent
This is an earlier decision relied upon in a subsequent case to persuade the court to decide the case in
the same manner e.g. a High Court decision used in a Court of Appeal, or a decision handed down by
a court in another country.

Distinguishing precedent
This is a subsequent decision of a court which effectively distinguishes the earlier precedents. It is a
precedent in its own right.

However, in certain circumstances, a court may refrain from a binding precedent. In such
circumstances, the earlier decision is ignored. This is done in the following circumstances:

1. Distinguishing: This is the art of showing that the earlier decision and the subsequent case
relate to different material facts. This enables a judge to ignore the precedent.
2. Change in circumstances: A judge may refrain from an earlier decision of a brother judge if
circumstances have changed so much so that its application would be ineffectual i.e. the
decision no longer reflects the prevailing circumstances.
3. Per incurium: It literally means ignorance or forgetfulness. An earlier decision maybe
departed from it if the judge demonstrates that it was arrived at in ignorance or forgetfulness
of the law, i.e. the court did not consider all the law as it existed at the time.
4. Over-rule by statutes: If a precedent has been over-ruled by an Act of Parliament. It ceases
to have any legal effect as statute law prevails over case law.
5. The earlier decision is inconsistent with a fundamental principle of law
6. If the ratio decidendi of the previous decision is too wide or obscure.
7. If the ratio decidendi relied upon is one of the many conflicting decisions of a court of co-
ordinate jurisdiction.
8. Improper Conviction: In Kagwe v R. (1950) it was held that a court could refrain from a
binding precedent if its application was likely to perpetuate an incorrect, erroneous or
improper conviction in a criminal case.

Advantages of case law (importance of stare decisis)

1. Certainty and predictability; Stare Decisis promotes certainty in law and renders a legal
system predictable. In Dodhia’s Case 1970, the Court of Appeal was emphatic that “a system
of law requires a considerable degree of certainty.”
2. Uniformity and consistency: Case law enhances uniformity in the administration of justice
as cases are decided alike.
3. Rich in detail: stare decisisis rich in detail in that many decisions which are precedent shave
been made by courts of law.
4. Practical: Principles or propositions of law are formulated by superior courts on the basis of
prevailing circumstances hence the law manifests such circumstances.
 5. Convenience: Case law is convenient in application in that judges in subsequent cases are
not obliged to formulate the law but to apply the established principles.
6. Flexibility: It is contended that when judges in subsequent cases attempt to distinguish
earlier decisions as to justify departing from them, this in itself renders the legal system
flexible.

Disadvantages of case law

1. Rigidity: Strict application of stare decisis renders a legal system inflexible or rigid and this
generally interferes with the development of law.
2. Bulk and complexity: Since stare decisisis based on judicial decisions and many decisions
have been made, it tends to be bulky and there is no index as to which of these decisions are
precedent. Extraction of the ratio decidendi is a complex task.
3. Piece-meal: Law-making by courts of law is neither systematic nor comprehensive in nature.
It is incidental. Principles or propositions of law are made in bits and pieces.
4. Artificiality in law (over-subtlety): when judges in subsequent cases attempt to distinguish
indistinguishable cases, they develop technical distractions or distinctions without a
difference. This makes law artificial and renders the legal system uncertain.
5. Backward-looking: Judges or courts are persuaded / urged to decide all cases before them in
a manner similar to past decisions. It is contended that this practice interferes with the ability
of a judge to determine cases uninfluenced by previous decisions.

International Instruments

Though not listed in the Judicature Act, international law is a source of Kenyan law. The government
is party to a number of international legal instruments and Kenyans can use these as an additional tool
for the advancement of their rights. However, it only becomes enforceable in Kenya after they have
been incorporated into our domestic legal system by implementing legislation.

Interpretation Of Statutes (Construction of Statutes)

Since statutes are drafted by experts who use legal terminologies and sentences which may be
interpreted by different persons, it becomes necessary to construe or interpret statutes.

Traditionally, statutory interpretation has been justified on the premises that it was necessary to
ascertain and give effect to the intention of parliament. However, a more recent justification is that it
is necessary to give meaning towards phrases and sentences used by parliament in a statute.
Generally, statutory interpretation facilitates uniformity and consistency in the administration of
justice or application of law. To interpret statutes, courts have evolved rules and presumptions.

RULES / PRINCIPLES / CANNONS OF INTERPRETATION

1. Literal Rule
This is the primary rule of statutory interpretation. It is to the effect that where the words of statute are
clear and exact, they should be given their literal or natural, dictionary or plain meaning and sentences
should be accorded their ordinary grammatical meaning. However, technical terms and technical legal
terms must be given their technical meanings.
This rule was explained in R.-v- City of London Court Judge. Under this rule, no word is added or
removed from the statute.

2. Golden rule
This rule is to some extent an exception to the literal rule.
It is applied by courts to avoid arriving at an absurd or repugnant or unreasonable decision under the
literal rule.
Under this rule, a court is free to vary or modify the literal meaning of a word, phrase or sentence to
get rid of any absurdity.
The rule was explained in Becke-v-Smith (1836) as well as in Grey-v-Pearson and was applied in R-
v-Allen to interpret the provision of the Offences against the Person Act (1861). It was also applied in
Independence Automatic Sales Co Ltd –v- Knowles and Foster to interpret the word ‘book debt’
used in Section 95 of the Companies Act of 1948.
The court interpreted it to mean all debts of the company which ought to have been entered in the
books in the ordinary course of business whether or not they were so entered.

3. Mischief Rule [Rule in Heydons Case (1584)]

This is the oldest rule of statutory interpretation. Under this rule, the court examines the statutes to
ascertain the defect it was intended to remedy so as to interpret the statute in such a manner as to
suppress the defect.

The rule was explained by Lord Coke in Heydon’s case (1584). According to the judge, four
things must be discerned and discussed:

1. What was the common law before the making of the Act?
2. What was the mischief and defect for which the law did not provide?
3. What remedy has parliament resolved i.e. appointed to cure the disease?
4. What is the true reason for the remedy?

The judge shall give such construction as shall advance the remedy and suppress the mischief.

The mischief rule was applied in Smith v. Hughes (1961) to interpret the provisions of the Street
Offences Act 1959.

Under the act, it was a criminal offense for a prostitute to ‘solicit men in a street or public place.’
In this case the accused had tapped on a balcony rail and hissed at men as they passed by below. The
Court applied the mischief rule and found her guilty of soliciting as the purpose of the Act was to
prevent solicitation irrespective of the venue.

The mischief rule was also applied by the Court of Appeal for Eastern Africa in New Great
Company of India v. Gross and Another (1966), to interpret the provisions of the Insurance (Motor
Vehicles Third Party Risks) Act.

4. Ejus dem generis Rule

This rule is applied to interpret words of the same genus and species. It is to the effect that where
general words follow particular words in the statute, the general words must be interpreted as being
limited to the class of persons or things designated by the particular words.

The rule was explained in R. v. Edmundson and was applied in Evans v. Cross to interpret the
provisions of the Road Traffic Act (1930).

5. Noscitur a sociis
This rule literally means that a word or phrase is known by its companions. It is to the effect that
words of doubtful meanings derive their meaning and precision from the words and phrases with
which they are associated.

6. Expressio unius est exclusio ullerius

This rule literally means that the expression of one thing excludes any other of the same class. This
rule is to the effect that where a statute uses a particular term without general terms the statutes
application is restricted to the instances mentioned.

7. Rendendo singula singullis

This rule is to the effect that words or phrases variously used in a statute must be accorded the same
meaning throughout the statute.

8. A statute must be interpreted as a whole

This rule is to the effect that all words, phrases and sentences must be given their due meaning
unless meaningless. All conflicting clause must be reconciled unless irreconcilable.

9. Statutes in pari materia

The interpretation of one statute is used in the interpretation of another related (similar) statute.

Presumptions In the Construction of Statutes

In the construction of statutes or Acts of Parliament, courts of law are guided by certain
presumptions, some of which include:

1. The statute was not intended to change or modify the common law
2. The statute was not intended to interfere with individual vested rights.
3. The statute was not intended to affect the crown or residency.
4. The statute was not intended to apply retrospectively.
5. The statute was not intended to be inconsistent with international law.
6. The statute was not intended to have extra-territorial effect.
7. An accused person is innocent until proven guilty.

Video to watch:
Title: Legal System & Method - Chapter 1: Sources of Law (Degree - Year 1)
Link of the video;
https://www.youtube.com/watch?v=-Wi4J9STdlw