Session 6

THE RULE OF LAW, CONSTITUTIONALISM, SEPARATION OF

POWERS AND CHECKS AND BALANCES AS BASELINES FOR
THE KENYAN LEGAL SYSTEM

Introduction

As noted at the beginning, the legal system a country includes

the set of rules of substance and procedure as well as the
institutions relating to the governance of social behaviour and
resolution of disputes which arise in the process, and includes
the underlined social values and attitudes which affect the
operations of such values.

In the context of Kenya, doctrines of the rule of law, constitutionalism,

separation of powers and checks and balances are some of the
overarching values that underlie the legal system and determines the
methods through which they are operationalised, thus worth of particular
attention here.

The Rule of Law

The rule of law is fundamental to democratic order. Aristotle said

more than two thousand years ago, "The rule of law is better than
that of any individual." Lord Chief Justice Coke quoting Bracton
said in the case of Proclamations (1610) 77 ER 1352) in the UK
that.

“The King himself ought not to be subject to man, but subject to

God and the law, because the law makes him King.”

6.2.1 Dicey's rule of law

The rule of law in its modern sense owes a great deal to
the late Professor AV Dicey. Professor Dicey's writings about
the rule of law are of enduring significance. In his 1885 book, An
Introduction to the Study of the Law of the Constitution (often
abbreviated as Law of the Constitution), Dicey laid out his three
principles of the rule of law thus:

(i) No punishment may be inflicted on anyone other than for a

breach of the law;

(ii) Irrespective of rank and status, all men are equal under the
law; and

(iii) The rights and freedom of citizen are best protected under the
common law.

1) Absence of arbitrary power

The first principle involves the absence of arbitrary power on the

part of the government and prevents it from making retrospective
penal law. This means that no man is punishable except for a
distinct breach of the law of the land. In order to comply fully
with this requirement, laws should be open and accessible, clear
and certain.

Under social contract theories, the individual citizen transfers his

rights to the government. To express it in another way, the
individual citizen owes allegiance to the Crown in return for
protection of the Crown. The doctrine of allegiance incorporates
the idea of obedience to law - both on the part of the citizen and
the government.
Under the rule of law, the extent of the State's power and the
manner in which it is exercise is limited and controlled by law.
This control is aimed at preventing the State from acquiring and
using wide discretionary powers. In Dicey's view, inherent in
discretion is the possibility of it being used in an arbitrary
manner and will be open to abuses.

If retrospective penal law is imposed, the individual will be placed

in the position where his conduct was lawful at the time of his
action but, subsequently held to be unlawful.

The court has always construed penal statutes narrowly

and will be slow to find that Parliament intended to impose
retrospective liability. If the Act of Parliament is expressed in
language which is fairly capable of either interpretation,
then the court would elect to construe it as prospective only.

In Waddington v Miah (1974), the House of Lords interpreted the

Immigration Act 1971 to disallow it having a retrospective effect
using Article 7 of ECHR, which guarantees freedom from
retrospective application of laws.

2) Equality before the law

Dicey emphasise the notion that government itself is also

subjected to law and that everyone shall be subjected to the law,
irrespective of rank and positions. In the words Lord Denning in
Gouriet: "Be ye ever so high, the law is above thee."

The idea of equality before the law is subjected to so many

exceptions. In so far as equal powers are concerned, it must be
recognised that the police have powers over and above ordinary
citizen (under common law). Ministers also do have power
to enact delegated legislation and the government exercises
prerogative powers. Members of Parliament have immunities not
available to citizen. In the words of Sir Ivor Jennings, ‘No two
citizens are entirely equal.’

The constitutional principle of the rule of law serves to bridge the

gap between the legal doctrines of parliamentary sovereignty and
the political sovereignty of the people ... The rule of law
therefore assists in preventing the subversion of the
sovereignty of the people by manipulating the legal sovereignty
of Parliament.

The evidence for the notion of equality before the law is neither
clear nor uncontentious.

There remains room for doubt and arguments.

3) The protection of rights under Common law

4) Dicey laid great emphasis on government by law, rather than

by men.

Dicey's preference demonstrates a faith in the judiciary. In

his view, the constitution is pervaded by the rule of law on the
ground that the general principles of the constitution (e.g. the
rights to personal liberty and the rights of a fair trial) are the
result of judicial decisions.

It is essential to recognise that Dicey was writing from a

particular political perspective. He was a committed believer of
free market operations and was opposed to any increase in State
activity that would regulate the economy. Thus, the third
limb of Dicey may look unsustainable nowadays. In the UK, for
example, the enactment of the Human Rights Act 1998, which
incorporated rights protected under the ECHR included the
obligations of the government to respect human rights.

6.2.2 Essential characteristic of the rule of law

While there is no set definition of the rule of law encompassing all

its practices, there is a basic realm of common principles as to
what the rule of law entails. For example, Rachel Kleinfeld Belton
identifies five common principles of the rule of law:

(i) A government bound by and ruled by law;

(ii) Equality before the law;

(iii) The establishment of law and order;

(iv) The efficient and predictable application of justice; and

(v) The protection of human rights.

Belton also identifies a second definition for the rule of law that is
based on the institutions or instruments by which the ends of
rule of law are achieved. These include:

(i) The existence of comprehensive laws or a constitution based

on popular consent;

(ii) A functioning judicial system;

(iii) Established law enforcement agencies with well-trained

officers.
The influential political theorist Joseph Raz, for his part, in his
work ‘The Rule of Law and Its Virtue,’ (The Law Quarterly
Review, volume 93, 1977 pg. 195) identified several
principles that may be associated with the rule of law:

(i) That laws should be prospective rather than retroactive;

(ii) Laws should be stable and not changed too frequently, as lack
of awareness of the law prevents one from being guided by it;

(iii) There should be clear rules and procedures for making laws;

(iv) The independence of the judiciary has to be guaranteed;

(v) The principles of natural justice should be observed,

particularly those concerning the right to a fair hearing;

(vi) The courts should have the power of judicial review over the
way in which the other principles are implemented;

(vii) The courts should be accessible; no man may be denied

justice;

(viii) The discretion of law enforcement and crime prevention

agencies should not be allowed to pervert the law.

According to Raz, the validity of these principles depends upon

the particular circumstances of different societies, whereas the
rule of law generally “is not to be confused with democracy,
justice, equality (before the law or otherwise), human rights
of any kind or respect for persons or for the dignity of man”.

Constitutionalism
This refers to the idea that the conduct of the government and
the exercise of state power should be limited according to certain
established and enforceable rules. This concept has to do with
the degree to which the constitution functions as a real
limitation in reference to which a state is administered. It is,
therefore, possible to have a Constitution without actual
constitutionalism.

The factors to consider while assessing constitutionalism are:

(i) Does the constitution or the law impose any limits to the power
of the state?

(ii) Is the constitution hierarchically superior to other legal

norms?

(iii) What is the degree of entrenchment of the constitution,

i.e., can it be easily be amended?

(iv) What degree of separation of powers exits?

According to De Smith:

Constitutionalism is practiced in a country where the

government is genuinely accountable to an entity or organ
distinct from itself, where elections are freely held on a wide
franchise at frequent intervals and where political groups are free
to organize and to campaign in as well as immediately before
elections with a view of representing themselves as an
alternative government and where there are legal guarantees of
basic liberties and enforced by an independent judiciary.

The core elements of constitutionalism include:

(i) The recognition and protection of fundamental rights and
freedoms;

(ii) Separation of power;

(iii) An independent judiciary;

(iv) The review of constitutionality of law; and

(v) The control of the amendment of the Constitution.

In countries where there exists a written Constitution, the

Constitution invariably enjoys a superior position within the legal
framework through its entrenchment and constitutionalism is
protected by ensuring that the key tenets enshrined within the
principles enjoy a higher level of protection. The Constitution is
regarded as the first law within which framework of details of
written rules and practices have to be laid out. The theory behind
the supremacy of the Constitution is that it the Constitution
embodies a contract between the governor and the governed and
therefore the Constitution must not be altered in the same
manner as ordinary legislation. The constitution is the product
of the exercise of the constituent power in the people and it is
from it that all the other legislation or laws derive their authority.

In the Kenyan context, the concept of the supremacy of the

Constitution is captured under article 2 of the Constitution,
similar to section 3 of the repealed Constitution. It is provided
that, “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 authorised under the Constitution.
(i) The validity or legality of this Constitution is not subject to
challenge by or before any court or other State organ;

(ii) and any law, including customary law that is

inconsistent with this Constitution is void to the extent of the
inconsistency, and any act or omission in contravention of the
Constitution is invalid.

Section 47 of the repealed Constitution was concerned with the

procedure of amendment and provided under subsection 2:

A Bill or an Act of Parliament to alter this Constitution

shall not be passed by the National Assembly unless it has
been supported on the second and third readings by the votes of
not less than 65% of all the members of the Assembly (excluding
ex-officio members).

Currently, the constitution in Chapter Sixteen provides the

procedure for its amendment.

Whereas article 256 provides for amendment by Parliamentary

Initiative, art 257 talks of amendment by Popular Initiative.
Furthermore, some amendments can only be made through a
referendum.

Separation of Power and the Concept Checks and Balances

6.4.1 Introduction

The separation of powers is a constitutional principle designed to

ensure that the functions, personnel and powers of the major
institutions of the state are not concentrated in any one body. It
ensures diffusion rather than a concentration of power within the
state.

There is no strict separation of powers under our Constitution.

Instead, while some separation of powers exists, it is more
accurate to speak of a system of checks and balances which
ensures that powers are not abused.

6.4.2 The Principle of Separation of Powers

The fundamental purpose of the separation of powers is to avoid

the abuse of power and thereby to protect the rights and liberties
of citizens.

The concept itself is of great antiquity and can be attributed

to Aristotle (384–322 BC); however, the clearest exposition of
the doctrine can be found in the French writer Charles- Louis de
Montesquieu’s De l’esprit des lois (1748). In essence,
Montesquieu states that the three organs of government – the
executive, legislature and judiciary – should each have a discrete
and defined area of power and that there should be a clear
demarcation of functions between them: this is true ‘separation
of powers’.

Under a written constitution, the powers allocated to

various institutions will be clearly defined. It should however
be noted that even under a written constitution a complete
separation of powers is not possible, and that without some
degree of interaction between the institutions there would be
constitutional deadlock. For the purpose of analysis, the subject
may thus be broken down by considering the extent to which the
executive and legislature, executive and judiciary, and judiciary
and legislature overlap and interact.

Under this doctrine, it is argued that Government organs must

be separated to ensure proper and easy functioning of state
duties. The organs of the state will include executive, legislature
and judiciary. They are supposed to be clearly defined. Their
powers and duties should be clearly spelt. They should be
autonomous without guidance from outside.

The aim of separation of powers is to prevent the abuse of

public power through the concentration of power. Thus James
Madison wrote in Federalist 47:

The accumulation of all powers, legislative, executive and

judiciary, in the same hands, whether of one, a few, or many, and
whether hereditary, self-appointed or elective, may justly be
pronounced the very definition of tyranny.

The other aim is to enhance the efficiency of government.

Separation of powers entails:

(i) Separation of functions: The powers of any one branch should

be exercised solely and absolutely by that branch and not the
other two. This means that the executive must not perform the
functions of the legislature or the judiciary performing the
functions of the executive. The legislature has the duty of
making new law and amending existing law. The judiciary
settles disputes between individual citizens and between the
individual citizens and the state. While the executive carries out
ordinary administration of the state.
(ii) Autonomy and independence: That one branch should never
be controlled and/or interfered with in the exercise of its powers.

(iii) Separation of persons: That the same persons should not

form or be part of more than one of the three branches of the
Government. This means that the same people should not occupy
the legislature, judiciary and the executive at the same time even
if these bodies would be said to exist separately.

In Kenya the totality of governmental process fall into three broad

divisions

(i) Legislative (law-making);

(ii) Executive; and

(iii) Adjudicative.

6.4.3 Weaknesses and Criticisms of the Doctrine of

Separation of Power

Montesquie’s theory of separation of powers has been subject to

attack on the grounds that:

(i) The Government is an organic body, which cannot be

separated into compartments. In practice, each organ needs
assistance of the others. Complete separation of organs of
Government is therefore practically impossible.

(ii) Absolute separation would be undesirable because there

would entail a spirit of competition and not co-operation within
the Government resulting in clashes and deadlocks. Functioning
of the Government in a proper way demands some co-
existence and harmonious collaboration between the three
organs. Separation of powers is, therefore, necessary only to the
extent that it provides specialization of functions, division of
labour and efficiency.

(iii) The advocates of the theory were under the belief that
the enjoyment of an individual’s rights depended solely on the
separation of powers, but this is not the case as there are other
determinant factors such as rule of law, constitutionalism, etc.
Separation of powers alone does not guarantee personal rights
and freedoms.

The separation of powers theory does not also guarantee absence

of arbitrary rule because the legislature may pass oppressive
laws.

(iv) There is the assumption that all the 3 arms of Government

are equally important. For example the legislature can pass
laws, which they do not repeal even if the judiciary declares that
they offend the Constitution. If the theory is taken to its logical
conclusions there would be some undesirable results.

6.4.4 Checks and Balances

Instead of absolute separation of powers, our constitutional

system adopts a notion of checks and balances where the powers
of one branch can be challenged by another branch. This is what
the system of checks and balances is all about. Each branch has
an effect on the other.

The following examples, which are not exhaustive, can be given.

1) Legislative Branch

a) Checks on the Executive

 Impeachment power: Both the National Assembly and the

Senate participate in the removal of the President and the Deputy
President (art 145). Trial of impeachments is done by the Senate
while the resolution is by the National Assembly.

 National Assembly approves departmental appointments by the

President: The Chief Justice, Diplomats, and cabinet Secretaries
etc.

 National Assembly approves treaties.

 National Assembly approves the exercise of the power to declare

war.

 President must deliver annual address to Parliament.

b) Checks on the Judiciary

 National Assembly approves the appointment of the Chief

Justice and Supreme Court Judges.

 National Assembly has power to set jurisdiction of courts.

2) Executive Branch

a) Checks on the Legislature

 President can veto a Bill passed by Parliament.

b) Checks on the Judiciary

 Power to appoint Chief Justice and Judges of the Supreme
Court; and

 Pardon power.

3) Judicial Branch

a) Checks on the Legislature

 Declaration of statutes as unconstitutional

The Supreme Court of Kenya stated in Speaker of the

Senate and Another v Attorney-General and 4 Others, “… as
a legal and constitutional principle…Courts have the
competence to pronounce on the compliance of a legislative body,
with the processes for the passing of legislation.” It clarified this
position by explaining that the court:

6…will not question each and every procedural infraction that

may occur in either of the Houses of Parliament. The Court
cannot supervise the workings of Parliament. The
institutional comity between the three arms of government must
not be endangered by unwarranted intrusions into the workings
of one arm by another.” Hence, No arm of government holds
a position superior to the terms of the law: for in a
constitutional democracy, it is the people’s will, as expressed in
the due operation of all dimensions of the Constitution that must
guide the functioning of the organs of state.”

 Decide on election petition; and

 Decide on vacation of office.

b) Checks on the Executive

 Judicial review; and

 Supreme Court settles presidential election disputes.

Session 7

THE DOCTRINE OF PRECEDENT AND THE STARE DECISIS

RULE IN THE COMMON LAW LEGAL SYSTEM

Introduction

As stated earlier, legal methods refer to the manner in which

those who make, activate, or operate the law use the legal system
to arrive at specific legal consequences. The process of debate of
administration, which is intended to produce a particular
interpretation of the law either in itself or in relation to
application to specific facts, is part of the legal method. Legal
method is best seen as the process of arriving at specific
consequences using legal tools in a specific context.

The Major Trial Systems

Earlier, it was noted that there are two major legal systems
adopted the world over, the Common Law and Civil Law.
One of the key distinctions between these systems is that
whereas the common law (which has been adopted in Kenya by
dint of its colonial heritage) is adversarial, civil law is
inquisitorial. Hence, before we address the concept of stare
decisis as used in the adversarial common law system, we
shall commence by looking at the distinctions that exist
between these two major systems in the manner in which the
court processes are undertaken.

7.2.1 Inquisitorial System

Inquisitorial trial is a method of legal practice in which the judge
endeavours to discover facts while simultaneously representing
the interests of the state in a trial. The presiding judge in the
trial is not a passive recipient of information. Rather, he is
primarily responsible for supervising the gathering of the
evidence necessary to resolve the case. He actively steers the
search for evidence and questions the witnesses, including the
respondent or defendant.

Lawyers play a more passive role, suggesting routes of inquiry for

the presiding judge and following the judge's questioning with
questioning of their own. Lawyers’ questioning is often brief
because the judge tries to ask all relevant questions.

The inquisitorial system was first developed by the Catholic

Church during the medieval period. The ecclesiastical courts
in thirteenth-century England adopted the method of
adjudication by requiring witnesses and defendants to take an
inquisitorial oath administered by the judge, who then
questioned the witnesses. In an inquisitorial oath, the witness
swore to truthfully answer all questions asked of him or her. The
system flourished in England into the sixteenth century, when it
became infamous for its use in the Court of the Star Chamber, a
court reserved for complex, contested cases. Under the reign of
King Henry VIII, the power of the Star Chamber was expanded,
and the court used torture to compel the taking of the
inquisitorial oath. The Star Chamber was eventually eliminated
as repugnant to basic liberty, and England gradually moved
toward an adversarial system.
After the French Revolution, a more refined version of the
inquisitorial system developed in France and Germany. From
there it spread to the rest of continental Europe and many
African, South American, and Asian countries. The inquisitorial
system is now more widely used in the world.

The court procedures in an inquisitorial system vary from

country to country. Most inquisitorial systems provide a full
review of a case by an appeals court. In civil trials under either
system of justice, the defendant, or respondent, may be required
to testify. A trial in an inquisitorial system may last for months
as the presiding judge gathers evidence in a series of hearings.

7.2.2 Adversarial System

In the adversary trials, two or more opposing parties gather

evidence and present the evidence, and their arguments, to a
judge or jury. The judge or jury knows nothing of the litigation
until the parties present their cases to the decision maker.
The defendant in a criminal trial is not required to testify before
the decision is given in the adversarial system.

7.2.3 Distinction between Inquisitorial and Adversarial Systems

The goal of both the adversarial system and the inquisitorial

system is to find the truth. But the adversarial system seeks the
truth by pitting the parties against each other in the hope that
competition will reveal it, whereas the inquisitorial system seeks
the truth by questioning those most familiar with the events in
dispute.
The adversarial system places a premium on the individual rights
of the accused, whereas the inquisitorial system places the rights
of the accused secondary to the search for truth.

The most striking differences between the two systems can be

found in criminal trials. In most inquisitorial systems, a criminal
defendant does not have to answer questions about the crime
itself but may be required to answer all other questions at trial.
Many of these other questions concern the defendant's history
and would be considered irrelevant and inadmissible in an
adversarial system. A criminal defendant in an inquisitorial
system is the first to testify. The defendant is allowed to see the
government's case before testifying, and is usually eager to give
her or his side of the story. In an adversarial system, the
defendant is not required to testify and is not entitled to a
complete examination of the government's case.

A criminal defendant is not presumed guilty in an inquisitorial

system. Nevertheless, since a case would not be brought against
a defendant unless there is evidence indicating guilt, the system
does not require the Presumption of Innocence that is
fundamental to the adversarial system.

The decision in an inquisitorial criminal trial is made by

the collective vote of a certain number of professional judges
and a small group of lay assessors (persons selected at random
from the population). Neither the prosecution nor the
defendant has an opportunity to question the lay assessors for
bias. Generally, the judges vote after the lay assessors vote, so
that they do not influence the conclusions of the lay
assessors. A two-thirds majority is usually required to convict
a criminal defendant, whereas a unanimous verdict is the norm
in an adversarial system.

The inquisitorial system does not protect criminal

defendants as much as the adversarial system. Prosecutors
in the inquisitorial system do not have a personal incentive
to win convictions for political gain, which can motivate
prosecutors in an adversarial system.

Most scholars agree that the two systems generally reach the
same results by different means.

Some countries, such as Italy, use a blend of adversarial and

inquisitorial elements in their court system.

Historical Development of the Doctrine of Precedent within

the Common Law System

The doctrine of precedent, that is, upholding decisions made in

previous similar cases, have for many hundreds of years been
important in the development of English law, but until the latter
part of the nineteenth century were only persuasive; that is, a
judge would be influenced by the decision in a previous case, but
did not consider himself bound by it.

The modern doctrine of precedent, under which a judge is bound

by the decision in a previous case, even if he considers it to be
unjust or illogical, is of comparatively modern origin.

In the early days of common law, judges considered that

their judgments were merely declaratory; common law was
based on general custom, and they were merely enunciating what
that custom was. This attitude left no room for the
development of a doctrine of precedent. In any event, there was
no method of recording judgments fully and accurately.

The development of printing and the improvement in the

standards of reporting meant that from the sixteenth century
onwards more attention was paid to decisions in previous cases.

By the early nineteenth century it had been accepted that regard

must be paid to previous decisions and that it was not for the
courts ‘to reject them and abandon all analogy to them’.

Later in the nineteenth century two events occurred which

laid the groundwork for the establishment of the system of
binding precedent in England:

In 1865 the Council of Law Reporting was created, and this

ensured that for the future there would be a consistent and
reliable system of reporting cases. There had been many earlier
series of reports, but their reliability varied considerably;

The whole system of courts was reorganised by the

Judicature Acts 1873-1875 and the Appellate Jurisdiction Act
1876, and this made easier the task of recognising the hierarchy
of courts.

This system was adopted in Kenya by virtue of the

Judicature Act. It is provided in the Judicature Act that:
Insofar as written laws do not extend or apply, the
substance of the common law, the doctrines of equity and
the statutes of general application in force in
England on the 12th Aug 1897, and the procedure and practice
observed in courts of justice in England at that date will be
applied.

Judicial Interpretation and Stare Decisis

This is the primary role of judges in the common law system. The
best point to start while considering the role of judges in the
common law system is the doctrine of precedent.

Precedent refers to the idea that judges make law in the

course of resolving disputes in common law indication. The
doctrine of precedent can best be summed up in the idea that in
“like cases should be treated alike”. Therefore all things being
equal cases with similar facts and issues in dispute should be
disposed of consistently by the courts.

Under common law, the obligation on a Judge is that precedence

must be followed whether the Judge agrees with that reasoning
or not. In this regard precedent could either be binding to a
Judge or it may merely be persuasive. Judges have a duty to
follow binding precedents but not the persuasive ones. An
example of a persuasive judgment would be that of another
jurisdiction for example English Courts decisions are of a
mere persuasive authority in Kenya.

When Judges follow binding precedents they observe the

principle known as stare decisis (also known as the doctrine of
binding precedence). This means that once an issue of law is
decided in the courts, it will be normally be binding on courts
lower down the hierarchy and in some circumstances on courts
at the same level with the hierarchy. This doctrine signifies that
decisions are to be followed because judges feel obligated to do so
no matter their view on the merit of the precedent are they feel
obligated to do so and not simply that precedents are to be
followed because judges think that they are good solutions to be
imitated.

The principle of stare decisis is therefore said to be paradoxical.

On the one hand a court has the power to decide only the dispute
before it and the decision that it announces is binding in like
cases. On the other hand it is left to the court deciding
future cases to determine whether those cases are like the
prior case and therefore whether the prior case must be
followed. The paradox is that a prior case binds the court but
only if the court decides that the prior case is binding.

This paradox has led many lawyers to come to appreciate that

the common law is not a set of fixed rules but rather a process.
It is a process whereby later cases are decided in a way that
seems consistent with prior cases, although it is only when the
later cases have been decided that the true meaning of the prior
cases becomes known. By continually deciding which cases are
similar or dissimilar to prior cases, courts are in effect shaping
the concept of the previously announced rules. These rules are
defined as they are applied, and the law is therefore in a
constant state of evolution, explication and elaboration.
(Vandevlde K.J. Thinking like a lawyer Westview Press 1996 P
35).
The doctrine of stare decisis is fundamental to the common law
system which is based on judge made law. It is what
distinguishes common law system from civil law system. In the
latter system the fundamental law is the legislation also known
as Code and the obligation on the judges is to faithfully interpret
the code rather than to follow precedent. By contrast in the
former system it is the judge made law which is fundamental and
the obligation of judges is to follow decisions made by courts high
up in the hierarchy in the past.

Judicial Precedents

It is however important to note that not everything said by a

judge when giving a judgment constitutes a precedent. This
status is reserved for the Judges of superior courts’
pronouncement on the law.

A judge is only obliged to follow a precedent if:

(i) There are numerous factual similarities between the earlier

case and the one before him;

(ii) The inevitable similarities are relevant.

(iii) If the facts upon which the precedent is predicated are

stated at a higher level of generality; for example in the prior
case it was held that presence of a concealed pit on the land gave
rise to a duty on the part of the landowner to warn a guest but
the case before the court involved a guest who fell down a slope.
The court characterized the prior case as involving “hazard rather
than concealed pit. For that reason the decision of the prior case
was binding on the case before the court.
If the prior case is characterized not in terms of its facts but in
terms of the underlying policy judgment. (For example
landowner’s duty to warn guests of pits may be taken to mean an
imposition of a duty on manufacturers to warn consumers on
effects in products.

Ratio Decidendi and Obiter Dictum

In giving judgment in a case, the judge will set out the

facts of the case, state the law applicable to the facts and
then provide his or her decision.

Rupert Cross says: “ratio decidendi is a rule of law expressly or

impliedly treated by the judges as a necessary step in reaching
his conclusion”. It is only the ratio decidendi (the legal reasoning
or ground for the judicial decision) which is binding on
later courts under the system of judicial precedent. Salmon
defines: "the ratio decidendi may be described roughly as the rule
of law applied by and acted on by the court, or the rule which the
court regarded as governing the case.”

Any observation made by the judge on a legal question suggested

by the case before him or her but not arising in such a manner
as requiring a decision is known as obiter dictum (a saying by the
way). An obiter dictum is a by-product of the original judgment.
They are only remarks and opinions of the judge. A dictum is a
rule of law stand by a judge which was neither expressly nor
impliedly treated by him as a necessary step in reaching his
conclusion.
Obiter dicta are unrealistic and contrary to current practice.
The rules of law based on “hypothetical facts” are mere dicta.
If the result is the same, giving no affect on the decision, then it
is “obiter dictum”.

There may be several reasons for a decision provided by the judge

in any given judgment and one must not assume that a reason
can be regarded as 'obiter' because some other 'ratio' has been
provided. Thus, it is not always easy to distinguish ratio
decidendi from obiter dictum when evaluating the effects of a
particular decision.

Good Hart propounded “material test". The rules of law based on

"material facts" are ratio decidendi. It is the best method in
finding "ratio".

Professor Wambaugh propounded, on the other hand

propounded the "reversal" test. According to this method, the
decision and reasons given by the judge shall be reversed and
observed. If the result is quite opposite, then it is "ratio". It is also
the best way in finding "ratio" of case.

The search for the ratio of a case is a process of elucidation; one

searches the judgment for the abstract principles of law which
have led to the decision and which have been applied to the facts
before the court.

As an example, in Donoghue v. Stevenson, a dead snail was in the

bottle of ginger beer bought by a friend for Donoghue. She fell
ill, and she sued the ginger beer manufacturer, Mr
Stevenson. The House of Lords held that the manufacturer owed
a duty of care to her, which was breached, because it was
reasonably foreseeable that failure to ensure the product's safety
would lead to harm of consumers. The ratio in the case would be
that a person owes a duty of care to those who he can reasonably
foresee will be affected by his actions.

Regarding to the obiter dicta of the case, Lord Atkin, one of the
case’s judges, mentioned the “Neighbour Principle”, stating that
a person is responsible not to harm another party or
parties if he or she can directly affect them. In other word, the
neighbour in this meaning is anybody who can be affected by the
act or the omission of that person.

In Carlill v Carbolic Smoke Ball Company [1893), a case whether

a woman who had used a smoke ball as prescribed could claim
the advertised reward after catching influenza, Bowen L.J. in the
dicta said:

If I advertise to the world that my dog is lost, and that anybody

who brings the dog to a particular place will be paid some
money, are all the police or other persons whose business it
is to find lost dogs to be expected to sit down and write me a note
saying that they have accepted my proposal? Why, of course
(not)!"

Methods of Avoiding Precedents

Judicial precedent is an important source of law as an original

precedent is one which creates and applies a new rule. However,
the later decisions, especially of the higher courts, can have a
number of effects upon precedents. In particular, they may be:
(i) Reversal - Where on appeal in the same case the
decision is reversed, the initial decision will cease to have any
effect.

(ii) Overruling - This occurs where in a later case a higher court

decides that the first case was wrongly decided

(iii) Refusal to Follow - This arises where a court, not

bound by the decision, cannot overrule it but does not wish to
follow it so it simply refuses to follow the earlier decision.

(iv) Distinguishing - It arises where an earlier case is rejected as

authority, either because the material facts differ or because the
statement of law in the previous case is too narrow to be properly
applied to the new set of facts. Arguments for distinguishing a
prior case mirror those for following it. These are:

a) Differences between the two cases;

b) Where similarities between the two cases are irrelevant;

c) Where the precedent is characterized in the narrowest

possible terms i.e. is not general;

d) Where the policy judgment underlining the prior case does not
apply to the current one

e) Where if the precedent is applied to the case, stare decisis

would also require that it is applied to other cases in which it will
produce clearly undesirable results.

(v) Explaining - It happens where a judge may seek to interpret

an earlier decision before applying it or distinguishing it, thus
the effect of the earlier case is varied in the circumstances
of the present case.

(vi) Per Incuriam - These are decisions made in error or mistakes

and can be avoided.

E.g. a decision of the court that has been reached in total

contradiction to the clear provisions of a statute is per incurium
and may thus be avoided by the courts.

Advantages and Disadvantages of Judicial Precedents

7.8.1 Advantages

i) Certainty - Liberty to decide each case as one thinks right

without any regard to principles laid down in previous similar
cases would only result in a completely uncertain law in which
no citizen would know his rights or liabilities until he knew
before what judge his case would come and could guess what
view that judge would take on a consideration of the matter
without any regard to previous decisions.

ii) Possibility of Growth - The system allows for new rules to be

established and old

rules to be adapted to meet new circumstances and the changing

needs of society. Where a precedent is considered to be
particularly valuable its scope can be extended in later cases:
conversely, where a precedent is felt to be defective, its scope can
be restricted by the process of distinguishing mentioned above.

iii) Practicality - The rules of case-law that abound in our legal

system do not derive from a particular theory of law, and do
not attempt to deal with hypothetical circumstances. They are
the result of the consideration of real situations which have come
before the courts. Precedents are based on real facts unlike
legislation and are thus practical.

iv) Wealth of Detailed Rules - No code of law could be devised

which would provide the wealth of detail to be found in English
case-law.

v) Uniformity - It brings uniformity to the law as similar cases are

treated in similar manner.

7.8.2 Disadvantages of Using Precedents

(i) Rigidity - Once a rule has been laid down it is binding even if
the decision is thought to be wrong, and altercation, other than
by distinguishing, which is less than wholly satisfactory, is
difficult. This disadvantage is modified to the extent that the
Supreme Court is not bound by its own previous decisions, but
people may be reluctant to bring appeals before the Supreme
Court because of the intricacies of court processes that lead to
that final appeal and, particularly bearing in mind that the
Court will not usually overrule its own previous decision
except in the most compelling circumstances. The possibility
that case-law will be abrogated or modified by legislation
alleviates the disadvantage of rigidity to some degree, but in
practice it is rare for the legislation to interfere with case-law.

(ii) Complexity - It is difficult to determine what exactly the ratio

dicidendi is since in most cases, there are a number of reasons
that determine how the court rules.
(iii)Cases May Easily be Avoided - Cases can be easily avoided
especially since it is possible to distinguish the facts in order
just to avoid inconvenient precedents.

(iv) Slowness of Growth - It does not allow for adaptation to

Change easily. It may take a long time before a case comes to
court in order to settle the question of what the appropriate law
is. The system depends on litigation for rules to emerge. As
litigation tends to be slow and expensive the body of case-law
cannot grow quickly enough to meet modern demands. Where it
is felt that a particular case has long been a precedent operates
unfairly.

(v) Bulkiness - There is so much law that no one can learn all of
it. There is a danger that even an experienced lawyer may
overlook some important rule in any given case. This is
particularly so with those branches of law which have been
developed mainly by case-law, as, for example, the law of torts.

Session 8

THE LEGAL PROFESSION IN KENYA

Session 9

APPROACHES TO INTEPRETATION AND NON-STATUTORY

AIDS

Approaches to Interpretation
Although the common law legal system is referred to as being
based on judge made law, it is statutory law which is increasingly
at the centre of the system. Whereas the primary source of law
within the common law system is unwritten law, written law has
since medieval times been seen as a technique used to
strengthen, interpret regulate or amend the common law.

Once a piece of legislation has been passed by Parliament

and thereafter received the presidential assent, it enters the
statute books and will be implemented by the relevant arm of
government. Questions may however arise about the scope,
meaning and applicability of legislation to particular factual
situations. This is when the judiciary is usually called upon to
interpret the statutes.

Therefore whereas it is common place to say that the creation of

law is the role of parliament, the function of interpretation leaves
the judiciary with a considerable degree of latitude in determining
what that legislation is.

Scholars have expressed the view that different approaches

should be adopted in interpreting different kinds of legislation
e.g. penal legislation should be interpreted in favour of the
accused in circumstances where words used in the law are
ambiguous. It is rather ten accused criminals go scot-free than
have one innocent person convicted. In social welfare legislations
(e.g. Housing, Education, Medical etc.), the Judge should bear in
mind the social utility or good to be achieved be the legislation.

Some of the approaches taken by judges include:

8.1.1 Analytical/Logical Approach

In this approach, the words are to be given meaning as they

appear. This theory considers the judge as a mere mechanical
instrument whose function is only to pronounce the meaning of
law as expressed in a statute.

8.1.2 Social Approach

This theory advocates a view of judge as a social engineer and

therefore in interpreting statue the judge must endeavour to
discuss and give effect to the social utility or good intended to be
achieved by the particular statute.

8.1.3 Free/Intuition Approach

This is by giving the Judges freedom to interpret law. This school

of thought states that in interpreting statutes, the judge should
declare what he considers to be the law even if his perception
may not be in line with the strict meaning of words appearing in
the statute even to depart from the expressed language contained
in the statue.

Non-Statutory Aid

These entail rules of interpretation and presumption that the

courts use to construe statutes. The part that follows will cover
the primary and secondary/subsidiary rules of interpretation.

Primary Rules of Interpretation of Statutes

 Literal Rule,

 Golden Rule,
 Mischief Rule

8.3.1 The Literal Rule

This rule is also referred to as the “plain meaning rule.” By the

literal rule, words in statute must be given their plain, ordinary
or literal meaning. The objective of the court is to discover the
intention of Parliament as expressed in the words used. This
approach will be used even if it produces absurdity or hardship,
in which case the remedy is for Parliament to pass an amending
statute.

One of the leading statements of the literal rule was made by

Tindal CJ in the Sussex Peerage Case (1844) 11 Olefin 85:

The only rule for the construction of Acts of Parliament is, that
they should be construed according to the intent of the
Parliament which passed the Act. If the words of the statute are
in themselves precise and unambiguous, then no more can
be necessary than to expound those words in their natural and
ordinary sense. The words themselves alone do, in such case,
best declare the intention of the lawgiver.

Lord Esher in R v Judge of the City of London Court [1892] 1 QB

273 said:

If the words of an Act are clear then you must follow them even
though they lead to a manifest absurdity. The court has nothing
to do with the question whether the legislature has committed an
absurdity.
In Whitely v. Chappell (1869), the defendant had voted in the
name of a person who had died, but was found not guilty of the
offence of personating ‘any person entitled to vote’: a dead person
is not entitled to vote.

In The Matter of Advisory Opinion of the Court under Art 163 of

the Constitution, The Supreme Court of Kenya stated:

A court may not arrogate to itself jurisdiction through the craft of

interpretation or by way of endeavours to discern or interpret
the intention of Parliament, where the legislation is clear and
there is no ambiguity.

8.3.1.1 Advantages of the Literal Rule

(i) It encourages draftsmen to be precise.

(ii) It respects the words used by Parliament.

(iii) It prevents judges “rewriting” statute law, which only

Parliament can do.

(iv) Alternative approaches would make it difficult to predict how

doubtful provisions might be “rewritten” by judges.

Judges have tended excessively to emphasise the literal

meaning of statutory provisions without giving due weight to
their meaning in wider contexts.

8.3.1.2 Criticism of the Literal Rule

(i) It assumes that parliamentary draftsmen are perfect.

(ii) It ignores the limitations of language.

(iii) It can lead to absurd or harsh decisions and Parliament has
to pass an amending statute.

8.3.2 The Golden Rule

The golden rule provides that if the words used are ambiguous
the court should adopt an interpretation which avoids an absurd
result.

Where the meaning of words in a statute, if strictly applied,

would lead to an absurdity, the golden rule is that the courts
are entitled to assume that Parliament did not intend such
absurdity, and they will construe the Act to give it the meaning
which Parliament intended.

In Grey v Pearson (1857) 6 HL Cas 61, Lord Wensleydale said:

The grammatical and ordinary sense of the words is to be

adhered to, unless that would lead to some absurdity, or some
repugnance or inconsistency with the rest of the instrument,
in which case the grammatical and ordinary sense of the
words may be modified, so as to avoid that absurdity and
inconsistency, but no farther.

This became known as “Lord Wensleydale’s golden rule”. In its

second, broader sense, the court may modify the reading of
words in order to avoid a repugnant situation as in Re
Sigsworth (1935).

So, for example, the Offences against the Person Act 1861,
provided that “whosoever being married shall marry another
person during the life of the former husband or wife” is guilty of
bigamy. Interpreted literally, this definition is absurd on two
counts:

(i) The phrase ‘shall marry another person’ is meaningless in the

context, as the essence of bigamy is that a married person
cannot marry again while his first marriage subsists.

(ii) The reference to a ‘former’ husband or wife is quite

inappropriate. The word ‘former’ suggests that the original
marriage no longer exists, but if that were the case the
person marrying again would not be guilty of bigamy.

Despite the slipshod draftsmanship of the Act, however, the

intention was clear, and the courts have interpreted the relevant
section as meaning that a person who purports to marry another
while his or wife or husband is still alive is guilty of bigamy.

8.3.2.1 Advantages of the Golden Rule

(i) It allows judges to avoid absurd or harsh results which

would be produced by a literal reading.

(ii) It allows judges to avoid repugnant situations, as in Re

Sigsworth.

8.3.2.2 Criticism of the Golden Rule

(i) There is no clear way to test the existence of absurdity,

inconsistency or inconvenience, or to measure their quality or
extent.

(ii) Judges can “rewrite” statute law, which only Parliament is

allowed to do.
8.3.3 The Mischief Rule

The main aim of the rule is to determine the “mischief and defect”
that the statute in question has set out to remedy, and what
ruling would effectively implement this remedy.

The Mischief Rule is a rule of construction that judges can apply

in statutory interpretation in order to discover Parliament's
intention. In applying the rule, the court is essentially asking the
question: what was the “mischief” that the previous law did not
cover, which Parliament was seeking to remedy when it passed
the law now being reviewed by the court?

The rule was first set out in Heydon’s Case [1584]76 ER 637, and
allows the court to look at the state of the former law in order to
discover the mischief in it which the present statute was
designed to remedy. According to the Court:

For the sure and true interpretation of all statutes in general (be
they penal or beneficial, restrictive or enlarging of the
common law), four things are to be discerned and considered:

(i) What was the common law before the making of the Act?

(ii) What was the mischief and defect for which the common law
did not provide?

(iii) What remedy the Parliament hath resolved and appointed to

cure the disease of the commonwealth. And,

(iv) The true reason of the remedy.

And then the office of all the judges is always to make such
construction as shall suppress the mischief, and advance the
remedy, and to suppress subtle inventions and evasions for
continuance of the mischief, and pro privato commodo, and to
add force and life to the cure and remedy, according to the
true intent of the makers of the Act, pro bono publico.

In Smith v. Hughes, for example, the Street Offences Act 1959

made it an offence for a prostitute to solicit men ‘in a street or
public place.’ The question was whether a woman who had
tapped on a balcony and hissed at men passing by was guilty of
an offence under the

Act. Parker, L.C.J., found her guilty:

I approach the matter by considering what is the mischief

aimed at by this Act. Everybody knows that this was an Act
intended to clean up the streets, to enable people to walk along
the streets without being molested or solicited by common
prostitutes.

Viewed in that way, it can matter little whether the prostitute is

soliciting while in the street or standing in a doorway or on a
balcony.

In the case mentioned, it was comparatively easy to apply

the mischief rule as the circumstances which caused the
passing of the Act were well known.

8.3.3.1 Advantages of Mischief Rule

(i) Some view the Mischief Rule as the best method of
interpretation of laws. The Law Commission in England sees it as
a far more satisfactory way of interpreting acts as opposed to the
Golden or Literal rules.

(ii) It usually avoids unjust or absurd results in sentencing;

(iii) It abides the rule that it is Parliament that makes law but the
legislature interprets the same.

(iv) It allows judges to put into effect the remedy Parliament chose
to cure a problem in the common law.

8.3.3.2 Criticism of the mischief Rule

(i) It is seen to be out of date as it has been in use since the

16th century, when common law was the primary source of law
and parliamentary supremacy was not established.

(ii) It gives too much power to the unelected judiciary which

is argued to be undemocratic.

(iii) In the 16th century, the judiciary would often draft acts on
behalf of the king and were therefore well qualified in what
mischief the act was meant to remedy. This is not often the case
in modern legal systems.

(iv) The rule can make the law uncertain, susceptible to the
slippery slope.

Rules of Language

8.4.1 Ejusdem generis

This Latin word means ‘of the same kinds, class, or nature’.
When a list of two or more specific descriptors is followed by
more general descriptors, the otherwise wide meaning of the
general descriptors must be restricted to the same class, if any,
of the specific words that precede them.

For example, where "cars, motor bikes, and motor powered

vehicles" are mentioned, the word "vehicles" would be
interpreted in a limited sense (therefore vehicles cannot be
interpreted as including airplanes).

When the Sunday Observance Act, 1677, provided that no

“tradesman, artificer, workman, labourer or other person
whatsoever” should do certain things, the general phrase
“other person whatsoever” was held to refer only “persons within
the class indicated by previous particular words’ and not,
therefore, to include such persons as farmers or barbers”.

This rule reflects an attempt “to reconcile incompatibility between

the specific and general words in view of the other rules of
interpretation that all words in a statute are given effect if
possible, that a statute is to be construed as a whole and
that no words in a statute are presumed to be superfluous”
(Tribhuwan Prakash Nayyar v. Union of India, AIR 1970 SC 540).

The Supreme Court of India in Amar Chandra v. Collector of

Excise, Tripura (AIR 1972 SC) held that this rule applies when:

 The statute contains an enumeration of specific words;

 The subjects of enumeration constitute a class or category;

 That class or category is not exhausted by the enumeration;

 The general terms follow the enumeration;

 There is no indication of a different legislative intent.

8.4.2 Noscitur a sociis

The Latin phrase means ‘known from associates’. The rule is

that the meaning of an unclear word or phrase is to be
determined on the basis of the words or phrases surrounding it.

In Bourne v. Norwich Crematorium Ltd. (1967), Stamp J. put it

thus:

Sentences are not mere collections of words to be taken out of the

sentence, defined separately by reference to the dictionary or
decided cases, and then put back into the sentence with the
meaning you have assigned to them as separate words...

In Foster v. Diphwys Casson (1887) 18 QBD 428, the matter

involved a statute which stated that explosives taken into a mine
must be in a "case or canister". Here the defendant used a cloth
bag. The courts had to consider whether a cloth bag was within
the definition. Under noscitur a sociis, it was held that the bag
could not have been within the statutory definition, because
parliament's intention was referring to a case or container of the
same strength as a canister.

In Muir v. Keay (1875) In this case the Refreshment House Act

stated that, Houses, Rooms, Shops or other buildings kept
open for public refreshment and entertainment must be
licensed. The defendant had a place called “The cafe “where
persons were found during the night being supplied with cigars,
coffee, beers etc. The defendant argued that the place was

not for entertainment as there was no music and dancing. Held:

The court held that what was happening at the place was
entertainment.

8.4.3 Expressio unius est exclusio alterius

This Latin words mean ‘the express mention of one thing is the
exclusion of another,’ and the rule is commonly expressed in the
short form as ‘Expressio unius Rule’.

The rule means that the expression of one thing is the exclusion
of another. The rule arises from the argument that if the
legislature had meant to include a particular thing within the
ambit of its legislation it would have referred to that thing
expressly. The legislature's failure to mention the thing
becomes grounds for inferring that it was deliberately
excluded.

Although there is no express exclusion, exclusion is implied.

When one or more things of a class are expressly mentioned

others of the same class are excluded. Thus a statute granting
certain rights to “police, fire, and sanitation employees” would be
interpreted to exclude other public employees not enumerated
from the legislation.

Other Approaches

8.5.1 Purposive approach

The purposive approach is one that will “promote the general
legislative purpose underlying the provisions” (per Lord Denning
MR in Notham v London Borough of Barnet [1978] 1 WLR 220).
There will be a comparison of readings of the provision in
question based on the literal or grammatical meaning of words
with readings based on a purposive approach.

In Pepper (Inspector of Taxes) v. Hart [1993] AC 593, Lord

Browne-Wilkinson referred to “the purposive approach to
construction now adopted by the courts in order to give effect to
the true intentions of the Legislature.”

8.5.1.1 Advantages of the Purposive Approach

 It gives effect to the true intentions of Parliament.

8.5.1.2 Criticism of the Purposive Approach

 It can only be used if a judge can find Parliament’s

intention in the statute or Parliamentary material.

 Judges can “rewrite” statute law, which only Parliament is

allowed to do.

8.5.2 Integrated Rule of Interpretation/ the Contextual

Approach

Sir Rupert Cross Statutory Interpretation (3rd edn, 1995),

suggested that there was an integrated approach to
interpretation:

The judge begins by using the grammatical and ordinary or

technical meaning of the context of the statute; If this
produces an absurd result then the judge may apply any
secondary meaning possible; The judge may imply words into the
statute or alter or ignore words to prevent a provision from being
unintelligible, unworkable or absurd; In applying these rules the
judge may resort to various aids and presumptions.

Importance of the Rules Analysed

The relative importance of the rules of interpretation is itself of

considerable controversy which raises theoretical and
substantive issues about the role of a judge, the law making

dimension of interpretation and the threat this poses to the

abstract supremacy of written law.

The controversy may be reduced into two positions: The first

position represents the judge as a passive actor in the process of
interpretation, merely giving the words of the Act their natural
meaning and applying that meaning to the situation in
dispute. This stresses a mechanical representation of
interpretation, emphasising the impartiality involved in
ajudication. This model is mostly sympathetic to the
adoption of literal style of interpretation.

The second model rejects the notion that the foregoing can be the
only role for the judge.

The second model represents the judge as a party who

undertakes an active role in the task of interpretation. The
model stresses the role of the Judge as an active participant
in the process of creating legal meaning. In this regard the Judge
can resort to the whole range of resources within the legal culture
which may lead to references to social policy, economics and
other broad administrative and political considerations of the
consequences of the rules to be applied. This model suggests a
dynamic role for the Judiciary.

It is most sympathetic to the techniques of interpretation which

seek to realise the purpose and objectives of legislation. Whereas
the first model provides no threat to the law making role of the
legislature, the second model potentially threatens the
supremacy of written law in that the judge may be seen as a law
maker with the capacity to change or even to undermine the
supremacy of the written law by resulting to sources and
materials outside the statutory provisions and thereby
threatening its status.

Session 10

PRESUPMTIONS, EXTRINSIC AID AND STATUTORY AIDS TO

INTERRETATION OF STATUTES

Presumptions

This is a non-statutory aid to the interpretation of Statutes.

In their attempt to construe statutes, courts of law are guided
by certain presumptions which include:

 The Statute was not intended to Change or Alter the Common

Law - Even though many statutes have that express intention
which will be f