MEANING OF LAW

Law is a set of rules set by a man, politically superior made to be followed by everyone
regardless of their stature. It is developed to govern people over a certain territory or certain
group.
Several theories have emerged in an attempt to answer the question ‘what is law?’ Major
theories are natural law, legal positivism, pure theory, legal realism, sociological theory,
historical theory, historical theory and economic theory
NATURE OF LAW
The different schools of thought that have arisen are all endeavours of jurisprudence: These
schools of thoughts…
(a) Natural law
This theory asserts that there are laws that are immanent in nature, to which enacted
laws should correspond as closely as possible. This view is frequently summarized by
the maxim: an unjust law is not a true law, in which ‘unjust’ is defined as contrary to
natural law. Natural law theory defines "law as the dictate of reason". The theorists are
called the Naturalists.
The natural law theory seeks to explain what the law is by reference to certain first
principles of nature. The theory believes that God endowed man at creation with
sufficient rationality which man is capable of discovering for himself if he applies his
reason. The theory believes that these principles or reason can guide a man’s actions
and his relations with fellow men.
Law consists of principles of Justice and morality which are deduced from the objective
moral principles of nature. These are rules of conduct for human beings, and, may be
discovered by natural reason and common sense. These are true law and are not
obligatory but are followed naturally by the people. This is the essence of this theory
of law.

Naturalists oppose the positive law founded in Codes, Statutes, Constitutions etc.,
These are obligatory and are enforced by force All these, which are opposed to natural
law, are riot really true law, but are only a violation or abuse of law.

Examples of Natural law theorists are; St. Thomas Aquinas

(b) Legal Positivism

The positive law school emerged in direct opposition to the views expressed by the
natural law school. Some of the influential defenders of legal positivism are the 19th
Century philosophers, John Austin and Jeremy Bentham; and the 20th century legal
philosopher H.L.A Hart.

This theory holds the view that whether a certain rule is a law, creating legal obligations
to comply with it all depends on its source of enactment. The adherents argue that the
only valid laws are rules that issue from persons or authorities which are in the habit of
securing unquestionable obedience from their subjects.
 Laws are rules made by the sovereign authority in accordance with certain procedures
which are obeyed and enforced by the society. The positive law theory rejects the notion
that human conduct can be governed by natural law. They also reject the notion that
human conscience or reason can lay down laws for the regulation of human conduct.
Positivists argue that only man-made law can be used to guide or order the lives,
transactions and aspirations of man.

Positivists see law as a command or a species of command. It is a command since it

attracts punishment or sanctions due to non-observance.

(c) Pure Theory of Law

This school of thought is essentially an offshoot of the positivist school of thought. The
only major deviation of the pure theory of law from the positive theory is one the
positive theorists’ conception of law as a command.
The chief proponent of the pure theory of law is Hans Kelsen. This theory must deal
with law as it is and not as it ought to be. Hans Kelsen sought a formula for explaining
the concept of law that will be free law from the contaminating effects of other
disciplines and concepts like morality, religion, sociology, ethics and politics and so
forth.
The major postulation of the pure law theory is that every legal system consists of a
hierarchy of norms in which inferior norms derive their validity from a higher norm.
The validity of a norm must be based on a higher norm, which itself must be validated
by yet another higher norm until we get to the ultimate or basic norm. The source from
which the basic law derives its validity is referred to by the pure theorist as the
‘grundnorm’.
Kelsen saw law generally as a means of ordering human behaviour, as a specific
technique of social organization. He admitted, however, that other systems of norms
(such as morality and religion) also seek to regulate human behaviour. But he identified
a specific characteristic of the legal method of ordering human behaviour that both
religion and morality lack. He calls that element the element of physical force.

(d) Legal Realism:

Oliver Wendell Holmes who was a judge of the US Supreme Court is the father
American Realism. According to realists, the decisions that judges hand down do not
simply arise or flow from a mechanical application of the law to the facts of individual
cases. Legal realism postulates that it is not possible to know what the law at any given
point in time until the court has had the opportunity of pronouncing on such statutory
provisions. Oliver Wendell Holmes argued that “the prophecies of what the courts will
do in fact and nothing more pretentious, are what I mean by the law.”

It holds that the law should be understood as being determined by the actual practices
of courts, law offices and police stations, rather than as the rules and doctrines set forth
in statutes or learned treaties. It had some affinities with the sociology of law.
Salmond’s Theory
Other legal realists are Karl Llewellyn
 (e) Sociological Theory
Sociology means, broadly the study of society of which law is but a part. Sociological
jurisprudence, according to its chief proponent, Dean Roscoe Pound, should ensure that
the making, interpretation and application of laws take account of social facts.
Law as a method of achieving peace and harmony should be formulated in such a way
that peaceful coexistence will continue notwithstanding the impossibility of satisfying
all wants.

(f) Historical Theory of Law

The major proponent of this theory is the German philosopher and thinker Von Savigny.
While the positivists preach that law is made by a human legislator, the historical school
direct attention to the evolutionary nature of law. The historical school believes that
however far back one goes into the past of a people, one will always find some law
governing them.
The historical law theorists argue that law reflects the spirit and common consciousness
of a people. The greatest contribution of the historical school lies in its recognition of
the fact that law is not just an abstract set of rules imposed on society but it is an integral
part of that society deeply rooted in the social and economic order in which it functions
and embodying traditional value systems which confer meaning and purpose upon the
given society.

(g) Economic Theory of Law

The most influential representative of the theory was Karl Marx. The Marxist theory of
law is generally identified with the following three underlying assumptions:
✓ that law is a product of evolving economic forces;
✓ that law is a tool used by a ruling class to maintain its power or stranglehold
over the lower classes;
✓ that in the communist society of the future, law as an instrument of social control
will wither away and finally disappear.
Marx wrote that a capitalist society will eventually be made up of two classes — the
bourgeoisie (‘the haves’) and the proletariat (‘have-nots’). Their common economic
interests and roles in the processes of production and exchange define these classes and
the opposed interests of the two classes produce conflict.
Law is perceived by Karl Marx as one of the means whereby the capitalist minority
seeks to preserve and increase its power, while those who have property sought to
protect it against those who have not. One of the main functions of law is to obscure
power relationships. Thus it is usually said that there is freedom of contract, but in the
absence of equality of bargaining power this freedom is illusory

Functions/ Purposes of Law

1. It promotes peaceful co-existence by ensuring law and order is maintained.
2. Law sets standards of behaviour and conduct in various institutions or industry such as
construction, trade etc. The law also acts as a control mechanism of the same behaviour.
 3. It protects rights and enforces duties by providing remedies whenever these rights and
duties are not honoured.
4. It resolves social conflicts. The rule of law facilitates their resolution by recognizing
the conflicts and providing necessary resolution mechanism.
5. It enables persons to make choices and give them legal effect. E.g law of contracts.

Differences between Civil Wrong and Crime

CIVIL WRONG CRIME

Definition offence against another individual Offence against the state
Purpose to deal with the disputes between To maintain the stability of the state
individuals, organizations or and society by punishing offenders
between the two, in which and deterring them and others from
compensation is awarded to the offending
victim.
Standard of Is on the balance of probabilities Beyond reasonable doubt
proof
Parties The plaintiff is the party that is Prosecution which represents the
involved suing. The defendant is the one state and the accused
being sued
Burden of Claimant must give proof “Innocent until proven guilty”. The
proof however; the burden may shift to prosecution must prove defendant
the defendant in situations of Res guilty
Ipsa Loquitur (The fact speaks for
itself)
Type of Compensation (usually financial) A guilty defendant is subject to
punishment for injuries or damages, imprisonment, fines
injunctions

Sources of Kenyan Law

The primary sources are enumerated in section 3 of the Judicature Act (Chapter 8 Laws of
Kenya), and they include:
(i) The Constitution
Constitution of Kenya, 2010 came into force on 27th August 2010.
It is the Supreme law of Kenya, taking precedence over all other forms of law, written or
unwritten. This means that if any law is inconsistent with it, the Constitution prevails, and the
other law, to the extent of its inconsistency, is void.
Many Acts of Parliament are made pursuant to particular provisions in the Constitution.
The Constitution of Kenya derives its supremacy under article 2.
Amendment of the Constitution is found under chapter sixteen; articles 255, 256 and 257.
(ii) Acts of Parliament / Statutes/ Legislation
These are passed by Parliament and also include subsidiary legislation, that is, laws made under
the Authority of an Act of Parliament.
Examples of statutes include; Engineers Act No. 23 of 2011.
(iii) Judicial Precedents/Case law
Case law may be described as the method of learning law “through cases”. By studying a
particular case and the decision therein, we get to know the legal rules relating to the factual
situation of the case.
For case law to be effectively applied as a source of law, the following doctrines are worth
mention;
a) The Doctrine of Stare Decisis
b) Ratio Decidendi
c) Obiter Dictum
(a) The Doctrine of Stare Decisis
Stare decisis means let the decision stand. Judicial precedent is based upon the doctrine of stare
decisis which refers to the legal doctrine that requires a judge hearing a case to refer to an
earlier case decided over by his predecessor in order to find out if material facts in those cases
are similar and to decide the case in the same way as the previous case.
This means that in trying and deciding cases a judge, must look back to see how the previous
judges have dealt with the case involving similar facts. In this way, the earlier decision “stays”
or “stands” as it was made.
The general rule provided by the doctrine of Stare Decisis is that a decision made by a court of
higher level binds all lower courts. A lower court cannot therefore over rule a higher court on
any decision.
A judicial precedent contains two parts:
(i) Ratio Decidendi: this literally means reasons for the decision. The ratio decidendi is the
rule acted on by the court in coming to the decision in a particular case. That is, the
vital reason, which leads the judge to decide a particular issue or the reason for his
decision.
Therefore, it is not the entire judgement in the previous case which becomes a binding
precedent but only that part which constitutes the ratio decidendi (reasons for his
decision) and the rest of the judgement is not binding.
(ii) Obiter Dictum: this means ‘by the way’ statements. Sometimes a judge may say things
(statements) which are not strictly relevant to the final judgment but which are intended
 to create some persuasive authority where there is no binding principle available. Such
remarks are called obiter dicta (remarks by the way.
Obiter dictum is not binding but maybe important in suggesting solutions especially
where it arises from the highest court; it is persuasive in nature.
Obiter dicta are things stated in the course of a judgment which are not necessary for
the decision. For example in R v Howe & Bannister [1987] 2 WLR 568 Case summary
the House of Lords held that the defence of duress was not available to murder. This
was the ratio decidendi of the case. The House of Lords went on to consider whether
the defence should be available to those who attempt murder and stated obiter dicta that
the defence of duress should not be available to attempted murder.
(iii) English Statutes of General Application in Force in England on 12th August 1897
It is provided under section 3 of the Judicature Act (Chapter 8 Laws of Kenya).
The English Statutes of general application passed before 12th August 1897 (the reception date),
are law in Kenya, unless a Kenyan Statute, or a latter English statute made applicable in Kenya,
as repealed any such statute.
A statute of general application, if repealed by a later English statute would still be law in
Kenya. Statutes of general application include public Acts of Parliament, that is, those which
apply to the inhabitants at large and which are not limited in their application to prescribed
persons or areas.
The statutes are also applicable in Kenya in the form that they had at the reception date. Any
subsequent amendments of such statutes in England have no effect in Kenya. The only way to
alter such statutes is for the Kenya Parliament to amend these by independent legislation.
(iv)The substances of Common law and Doctrines of Equity
These are only applicable to the Kenyan inhabitants in so far as the circumstances of Kenya
permit, subject to such qualifications as those circumstances may render necessary.
These got incorporated into the Kenyan law under section 3 (1) (c) of the Judicature Act
(Chapter 8 Laws of Kenya).
Common law is a branch of England which was developed by the ancient common law courts
from customs usages and practice of the English People. These courts applied the people’s
customs to resolve legal problems thereby giving the customs the effect of law.
It is not the entire common law that is a source of law in Kenya but only the portion which the
courts find compatible with the needs of the people of Kenya.
Equity means “fairness and justice”. The complainants who were dissatisfied with the decisions
of common law turned to the King and petitioned him to do justice to His Subjects and provide
them with an appropriate remedy. At first the king himself attended to the petitions. With
increasing pressure of work, he later handed over these petitions to Lord Chancellor. The Lord
Chancellor set up his own court to chancery where he or his representatives sat and decided the
cases. The decisions of the chancellor were guided with equity or fairness. Consequently, the
decisions made by the chancery came to be known as equity.
Equity developed the so called “maxims of equity”. These Maxims of equity are statements
which embody rules of equity. They are only guidelines. They are not applied strictly in every
case.
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).
10. Equity does not act in vain.
11. Delay defeats equity.
12. Equity aids the vigilant and not the indolent.

(v) African Customary Law

This is applicable only on civil cases where one or more of the parties is subject to or affected
by it, in so far as it is applicable and is not repugnant to justice and morality or inconsistent
with any other law. African Customary Law differs from tribe to tribe.
Article 2 (2) states that any law including customary law that is inconsistent with the
Constitution is void...
(vi)Islamic Law
This is a very limited source of law in Kenya. It is applied in Kadhi’s Court when all the parties
profess the Muslim religion, but only as to questions of Muslim law relating to personal status,
marriage, divorce and inheritance issues.
(vii)International Instruments
The constitution under article 2 sub article (5) provides that the general rules of international
law shall form part of the law of Kenya, sub article (6) states that any treaty or convention
ratified by Kenya shall form part of the law of Kenya.
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.
Examples include Vienna Convention for the protection of Ozone layer, 1985; United Nations
framework Convention for the protection of Ozone Layer, 1985.
COURT SYSTEM IN KENYA
The court system is divided into;
(i) Superior Courts; and
(ii) Subordinate Courts
Superior Courts
The Constitution of Kenya, 2010 under article 162 states that superior courts are;
a) Supreme Court
b) The Court of Appeal
c) The High Court

(a) Supreme Court (Art 163)

The Supreme Court consists of The Chief Justice, the Deputy Chief Justice and Five other
judges.
For the purpose of its proceedings, the Supreme Court is properly constituted if it is composed
of five judges.

Functions
1. Supreme Court has the exclusive original jurisdiction to hear and determine disputes
relating to the elections to the office of President
2. To hear and determine appeals from the Court of Appeal on matters involving the
interpretation or application of the Constitution and matter of general public importance
is involved.
3. Supreme Court may give an advisory opinion at the request of the national government,
any state organ, county government.
4. All courts, other than the Supreme court, are bound by the decisions of the Supreme
Court.
5. Supreme Court shall make rules for the exercise of its jurisdiction.
NB: Look at The Supreme Court Act, 2011

(b) The Court of Appeal

The Court of Appeal shall consist of number of judges not fewer than twelve, as prescribed by
an Act of Parliament.
The Court of Appeal has jurisdiction to hear appeals from the High Court and any other court
or tribunal as prescribed by an Act of parliament.
NB: Look at The Court of Appeal (Organization and Administration ) Act, 2015
(c) High Court
The High Court consists of a number of judges prescribed by an Act of parliament
Functions
1. Unlimited original jurisdiction in criminal and civil matters;
2. Jurisdiction to determine a question whether a right or fundamental freedom in the Bill
of Rights has been denied, violated, infringed or threatened;
3. Jurisdiction to hear appeal from a decision of a tribunal appointed under this
Constitution to consider the removal of a person from office, other than a tribunal
appointed for the removal of President on grounds of incapacity.
4. Jurisdiction to hear any question respecting the interpretation of this constitution
including the determination of-
(i) The question whether any law is inconsistent with or in contravention of this
Constitution;
(ii) The question whether anything said to be done under the authority of this
Constitution or of any law is inconsistent with or in contravention of this
Constitution;
(iii) A question relating to conflict of laws under article 191of the Constitution
Any matter certified by the court as raising a substantial question of law under function 2 and
4 shall be heard by an uneven number of judges, being not less than 3 and are assigned by the
Chief Justice.
High Court has supervisory jurisdiction over the subordinate courts and the over any person,
body or authority exercising a judicial or quasi-judicial function, but not over a superior court.
The appointment, tenure and removal of the judges are found under article 166, 167 and 168.
NB: Look at The High Court (Organization and Administration), 2015
Subordinate Courts
Subordinate courts include;
(a) The Magistrates courts; Look at The Magistrates’ Courts Act, 2015
(b) The Kadhis’ courts;
(c) The Courts Martial; The Kenya Defence Forces Act, 2012
(d) Any other court or local tribunal as may be established by an Act of parliament.
Kadhis’ Courts (Article 170)
A person is qualified for appointment to the office of Kadhi if the person;
(i) Profess the Muslim religion; and
(ii) Possesses such knowledge of the Muslim law applicable to any sects of Muslims
The jurisdiction of a Kadhis’ court shall be limited to the determination of questions of Muslim
law relating to personal status, marriage, divorce or inheritance in which all the parties profess
the Muslim religion and submit to the jurisdiction of the Kadhi’s Courts.
Look at The Kadhis’ Courts Act Chapter 11.

DEFINITION AND MEANING OF TORTS