BUSINESS

LAW
Introduction to law
 LAW
• What is law

• How is the law

classified

• Sources of the law

 WHAT IS LAW?

Plato’s pupil, Aristotle

“Law is an embodiment of Reason,

whether in the individual or the
community”
 The body of principles recognized
LAW and applied by the state in
administration of justice …and
consists of rules recognized and
acted on by courts of justice
 THE LAW AND MORALITY

IT IS IMPORTANT TO EXAMPLE, IT IS MORAL TO OTHER EXAMPLES?

DISTINGUISH BETWEEN LAW RESPECT YOUR ELDERS BUT IT
AND MORALITY, THE KEY IS NOT A CRIME NOT TO
DISTINGUISHING FACTOR IS
THAT THE LAW IS ENFORCED BY
COURTS OF LAW WHILE
MORALITY IS NOT UNLESS IT
FORMS PART OF A LAW
 Wrong and right

Fluid/dynamic/
variable….area….time….era

C H A R AC T E R IST IC
S O F M O R ALIT Y

Developed by society

Foundation of ethics
 LAW MORALITY

• fixed
• recognises a legal issue or • flexible
tackles a legal problem • defines good & wrong
• enforced by the • the society observes and
government ‘enforces’ it
• has a strong religious or
• process to come up, change
traditional background
or do away with it is known
• it can be developed by a
• interpreted by courts person, an event or
• sources of law are known community
• influences the law
 LAW MORALITY

Legal Immoral

• Before 1994 - Apartheid • Apartheid

• Gambling/betting
• Gambling/betting

Illegal
Moral

• After 1994 - Apartheid

• Xenophobia
• Recreational drugs
• Recreational drugs
 CLASSIFICATIONS SIMPLIFIED

 Public Law ; described as the branch of law which regulates

relationships between citizens and the state and regulates
operations of the various organs of the state. Public law embraces
Constitutional Law, Administrative Law and Criminal Law
 Private Law; is the branch of law that embraces the law of contract,
law of torts, law of succession, law of agency, law of insurance
e.t.c , it is a contradistinction to public law
NB: it is possible for some situations to give rise to both
criminal and civil liability i.e dangerous driving
  Substantive Law; these are the
legal rules which define or specify
what is lawful or unlawful to do.
Example of substantive law on
marriage is:
a. Only a man and woman can get
married anything else is unlawful
MORE ON b. The man and woman must not
C L A S S I F I C AT I O N be related within legally defined
relationships( a sister cannot
marry her brother no matter how
much he loves him)
c. The man and woman must have
reached the minimum age
allowed for marriage to
happen( a teenage boy cannot
marry a five year old girl)
  Procedural Law; is the body of rules
which define the steps to be taken or
the procedure to be followed by people
who intend to do lawful acts.
NB it is important to note that when
substantive law changes generally
the procedural law changes with it.
 International Law; is a branch of public
MORE ON law and has two main branches public
C L A S S I F I C AT I O N international law and private
international law
i. Public international law; regulates
relationships between various
nations
ii. Private international law also known
as the law of conflicts is the branch
of international law which determines
the national law that is to be applied
by courts in a case involving two
different nationalities. Deals with
jurisdictional issues of contracts and
enforcement.
 • The Constitution of Kenya
2010
• Statutes/Acts of Parliament
SOURCES • Subsidiary legislation
OF THE • Case law / decided cases
LAW • International law
• Equity
• Common law
• African customary & Hindu &
Islamic law
 THE CONSTITUTION OF
KENYA

Is the supreme law of Kenya

Article 2. (1) This Constitution is the supreme law of the

Republic and binds all persons and all State organs at both
levels of government.
(2) No person may claim or exercise State authority
except as authorised under this Constitution.
(3) The validity or legality of this Constitution is not
subject to challenge by or before any court or other State
organ.
 Has 18 chapters and provides for
• Citizenship
• National languages, days and
symbols
THE CONSTITUTION • Rights and freedoms
O F K E N YA
• Creates the arms of
government and constitutional
offices and bodies
 STATUTES/ACTS OF
PARLIAMENT

Also known as legislation, they stand out as the most important

source of law. They are passed by parliament and they may overrule
a court decision or cause a new law to be created all together i.e the
statute amendment act of 2020 has made VAT to drop for 16% to
14%
The Constitution states that as part of their functions Parliament may
reform, consolidate or codify law into express rules and regulations

Out of statute law is also born subsidiary legislation and these can be
described as by-laws and regulations made by Cabinet secretaries
and other administrative authorities.
 STATUTES/ACTS OF
PARLIAMENT

• The Contract Act

• The Companies Act
• The Hire Purchase Act Substantive Statutes
• The Insurance Act
• The Marriage Act
• The Sale of Goods Act

• The Civil Procedure Code

• The Criminal Procedure Code Procedural Statutes
 INTERNATIONAL LAW

The Constitution provides that the Has its main source in treaties and
international law shall form part of conventions as provided for in
Kenyan law Article 3(6) of the COK
 CASE LAW/JUDICIAL
PRECEDENT/DECISION

 Whereas Parliament makes the laws the judiciary plays a critical

role in that they interprete the law and also determine if it is
consistent with the COK
 Judicial decisions have the effect of changing or making a law. They
may also trigger the Parliament to look into issues that are not
directly addressed by the law i.e the SOA addresses the issue of
defilement to be sexual intercourse with a minor irrespective of
consent, the law however does not address the issue of consensual
sexual intercourse between manners therefore leaving a lacuna in
the law.
 They are mostly known as or called decisions of the court, they are
pronouncements of the court
COMMON
LAW
 COMMON LAW

Refers to the legal Not all common law

values and principles forms part of Kenyan
that were developed in law, only the parts
the judicial process in provided for in the
the ordinary courts of Judicature act and
England on the basis of described as the
ancient customs of the substance of common
people of England law qualify
 DISADVANTAGES OF
COMMON LAW

Rigidity
Slow
Corruption
Inadequate
 EQUITY

 The word equity ordinarily means ‘fairness’ or ‘justice’

 Improved common law as they were developed to
supplement rules and procedure of common law
 Some of the defects of common law that led to the
development of equity include:
i. Common law was to rigid under the writ system
and this stopped expansion and development
ii. Common law procedures were technical and as a
result of this some plaintiffs lost otherwise good
cases
 MORE ON DEVELOPMENT OF
EQUITY

Common law allowed some reasons that automatically delayed the

case and hence delaying the determination of the case i.e if
someone said they were sick the case would be adjourned for 1 year
one day irrespective of the nature of their illness.
The only remedy that was allowed for civil wrongs under common
law were financial compensations commonly referred to as damages.
This was not sufficient as in some cases more was needed i.e when
dealing with land the court cold not order specific performance
(The
forcing
trustainstitution
specific act to not
was happen)
recognized in common law, for example
if A gives property to B in trust for C the court could not force B to
use the property and income soley for the benefit of C, equity cured
this
 MAXIMS/
PRINCIPLES OF
EQUITY
 • Equality is equity; for example
in a divorce case the court will
divide property equally
amongst the two spouses
• Equity suffers no wrong without
MAXIMS/ a remedy; this is the basis of
PRINCIPLES enforcement of the law of trusts
OF EQUITY • Equity aids the vigilant not the
indolent
• Delay defeats equity; once a
person has suffered a wrong he
should not sleep on his rights or
wait to long to file a suit
 • Equity does not act in vain;
• He who comes to Equity must
come with clean hands
• Equity looks to the intent or
substance rather than the
MAXIMS/ form; here reasonableness is
PRINCIPLES looked at insofar as
OF EQUITY contractual obligations are
concerned
• Equity looks upon as done that
which ought to be done; i.e an
agreement for lease is as good
as the lease itself
 OTHER SOURCES OF LAW

 African customary law; maybe described as the law based on the

customs of the ethnic groups which constitute the indigenous or Africa
population
 Islamic law; are based on the Holy Koran and the teachings of Prophet
Mohammed. Is applicable in Kenya under the Kadhis Court Act
 Hindu customs, they are applicable under section 5 of the Hindu
marriage and divorce act which defines customs as rules that have
been continuously observed over a long period of time

NB, it is important to note that for the above to be used as sources of law
Article 159 (3) of the COK must be applied and it states that the above
sources ;
i. Shall not contravene the Bill of rights
ii. Shall not be repugnant to justice or morality
iii. No inconsistency with the Constitution or written law
 FEATURES OF CIVIL
LITIGATION

• Dispute/cause of action
• Civil Procedure Act & Rules
• Plaintiff/ Petitioner/ Applicant/Claimant
• Defendant/Respondent
• Ruling – interim decision-while in the process
• Judgement – final decision
• Decree – summary of the judgement
• Appeal
• Representation ... self or advocate
• Burden of proof - on balance of probabilities
 • Offence
• Report – police station
• Investigation
• Director of Public Prosecution
confirms if case can proceed
F E AT U R E S O F • Arraignment – court
CRIMINAL
L I T I G AT I O N • Take plea
• Cash bail/bond
• Criminal case - R. v. Accused person
• Burden of proof
• Case must be proved beyond
reasonable
 • Silence
• Sworn testimony
• Unsworn testimony
• Judgement – guilty or not
DEFENCE guilty
HEARING • Appeal
• Sentencing/Punishment - fine,
imprisonment, both,
community service, probation,
deportation, withdrawal of a
freedom
 DEMERITS OF LITIGATION

• costly
• vicious
• can be complex to a lay-man
• is an urban solution
• time consuming
• the justice system can be influenced/compromised
• injustice
ALTERNATIVE DISPUTE
RESOLUTION

ADR
 The Constitution of Kenya
[Article 159(2)(c)]

Mediation

Negotiation

ADR
Arbitration

Reconciliation

Conciliation
 • Conducted by the parties
• Is flexible & simple
• Friendly
• Cheap
NEGOTIATION • Maintain relations between
parties
• Maintains privacy
• Can be abused
• Not binding
 • Involves a neutral 3rd party -
mediator
• Fast
• Cheap
• Private
M E D I AT I O N • Friendly
• Simple
• Not binding unless there is a
mediation agreement or is
court annexed
• Parties can leave at their own
will
 • Arbitration Act
• Arbitration agreement
• Arbitrator/panel
• Award
• Binding
A R B I T R AT I O N
• Appeal to the High Court
• Fast
• Ideal for sensitive projects or
relationships
• Very costly
JUDICIARY
 COURT SYSTEM- THE
HEIRACHY

Supreme Court
Court of Appeal
High Court
Environment and Land Court
Employment and Labour Relations Court
Magistrate Court
Court Martial
Kadhis Court
Tribunals
 Composition
Judge or magistrate or chair

Jurisdiction
MORE ON  Original
THE COURT  Appellate
SYSTEM
 Civil
 Pecuniary/cost of suit
 Criminal
 Provided for in Article 163 C.O.K
2010, this court did not exist
before 2010 when Kenya had
another Constitution

SUPREME  Composition comprises of ;

COURT
i. Chief Justice
ii. Deputy Chief Justice
iii. Five Judges
 • Jurisdiction
i. Presidential election
petitions. - original
ii. Appeals from the Court
of Appeal. – appellate.
iii. It is important to note
SUPREME
that the appeals from the
COURT COA are limited to those
of interpretation of the
Constitution and those
that the Supreme Court
deem to be of great
public importance
 Article 164 C.O.K.
• Composition - Three (3) Judges

• Jurisdiction – appellate civil &

criminal
COURT OF
i. It is an appellate court. It
APPEAL hears appeals from the
High Court, Environment
and Land Court and
Employment and Labour
Relations Court.
  Article 165
 Composition – one Judge
 Jurisdiction
i. Original and appellate.
ii. Criminal and civil.
HIGH iii. To determine denial,
infringement or threat to
COURT rights and fundamental
freedoms.
iv. To hear appeal from
tribunals.
v. To hear questions on
interpretation of the
constitution.
 Article 162 (2) (b)
 Composition - One (1) Judge
 Jurisdiction

ENVIRONMENT AND i. Original and appellate.

L A N D C O U RT
ii. Civil.
iii. Cases on environment
and the use and
occupation of and title to
land.
 Established under Article 162 (2)
(a)
 Composition - One (1) Judge
E M P LOY M E N T A N D  Jurisdiction
LABOUR
R E L AT I O N S C O U R T i. Original and appellate.
ii. Civil.
iii. Cases on employment
and labour relations.
  Article 169 of the Constitution
 Composition - One (1)
Magistrate
M A G I S T R AT E
C O U RT  Jurisdiction
i. Original.
ii. Civil and criminal.
  Levels of magistrate court
(Pecuniary jurisdiction)
 Chief magistrate (20
million shillings)
 Senior Principal magistrate
MORE ON
(15)
MAGISTRATE
COURT  Principal magistrate (10)
 Senior Resident magistrate
(7)
 Resident magistrate (5)
 Small claims courts (1)
KADHIS
COURT
Read Articles 169 and 170 of the
Constitution of Kenya
  Established by Acts of Parliament
 They exercise judicial and quasi
judicial functions
 Supplement ordinary courts
 Examples :
i. Capital Markets Tribunal, here
one can appeal any decisions
TRIBUNALS made by the Capital Markets
Authority
ii. Sports Tribunal
iii. Business Premises Rent
Tribunal
iv. Tax Appeal Tribunal; a forum
for those who are aggrieved
by the the decision of the
Commissioner for Tax
Q&A
THE END