INTRODUCTION AND REFORMS

In Kenya like other Nations in the Continent of Africa before the European Imperialists
established (colonized) the African territories, the African Traditional Communities (ATC) used
the fora of justice at family, shrines, churches, mosques. ATC also applied other alternative
dispute resolution mechanisms that included reconciliation, mediation and arbitration. However,
they instituted the Courts Actions as the last resort, because the people since time immemorial
were aware of the fact that the Court proceedings were naturally adversarial.
Kenya’s Judiciary has since independence been transformed from a dual to a unified Judicial
system which applies both English law and African Customary law. Hitherto, there existed two
systems – one for the African native and another for European settlers. In 1967 three major laws
were enacted. These were the Judicature Act (Chapter 8), the Magistrates’ Courts Act (Chapter
10) and the Kadhis Courts Act (Chapter 11). These Acts have streamlined the administration of
justice in Kenya.
These three statutes repealed all other legislations other than the provisions of in the Lancaster
Conference Constitution, by directing the law that was to be applied by the Courts. Kenyan law
system today is therefore significantly based on the Constitution of Kenya 2010 and other Acts
of Parliament.

Kenya’s Judiciary discharges its mandate through the following branches: the Court Systems
(structure), the Judicial Service Commission and The National Council for Law Reporting. That
was the old order before Chief Justice (CJ) Will Mutunga took over the realms of power from
Justice (Retired) Evans Gicheru. The Judiciary was such that the Office of the Chief Justice
operated as a judicial monarch supported by the Registrar of the High Court. Power and authority
were highly centralized. Accountability mechanisms were weak and reporting requirements
absent.  The Judiciary institution had: weak structures, inadequate resources, diminished
confidence, deficient in integrity, weak public support and literally incapacitated to deliver
justice.
The new Constitution (The Constitution of Kenya 2010) has radically altered ugly State of
Judiciary that had been re-designed by the political governing regimes to fail.  Now, the
Transformation Agenda speared being by Dr. Will Mutunga who assumed the Office Chief
Justice on 20th June 2011. The CJ is assisted by Chief Registrar of the Judiciary who is chief
administrator and accounting officer of the Judiciary. Take note of the change of designation
from Registrar of the High Court to Chief Registrar of the Judiciary!
The Court system has been decentralized with the Supreme Court and the Court of Appeal
having their own Presidents and the High Court having a Principal Judge as heads of the
respective Institutions. The Judiciary plans to set up a Leadership Committee which will act as a
management team for the entire Judiciary once the staff recruitment process and vetting of
Judges and Magistrates is finalized. Management Committee will be composed of the CJ as
Chair, Deputy Chief Justice (DCJ), President of Court of Appeal, Principal Judge of the High
Court and representatives from the magistracy and the paralegal fraternity.

The High Court has been restructured into four divisions:  Division of Land and Environment –
To make ruling on issues of sustainable development and equitable distribution of resources.
Division of Judicial Review. Division of Commercial and Admiralty – To adjudicate commercial
disputes and reduce the transaction costs of justice for the private sector. Constitution and
Human Rights – To be first instance in constitutional cases;  interpreting and enforcing Bill of
Rights.

The Judiciary has institutionalized Performance Contracting (PC) by planning to establish a fully
fledged directorate of performance management. PC is Result-Based Management (RBM)
methodology that has been implemented by the Executive Arm of the Government was
vehemently opposed by the Old Guards in the Judiciary. RBM is a participatory team based
approach designed to achieve defined results by improving programme and management
efficiency, effectiveness, accountability and transparency. Performance based management
practices will be applicable to both judicial and administrative staff.

In order to promote sound management practices, the judiciary has also established
Transformation Steering Committee and where all stakeholders in the judicial system are
represented. The Steering Committee has developed an Integrated Comprehensive and
Institutional Transformation Framework that identified 10 clusters for the Strategic Plan.

An Ombudsperson was appointed and began to receive and respond to complaints by staff and
the public. Also the Chief of Staff was appointed to oversee the establishment of the Executive
Office of the Chief Justice and facilitate the CJ’s numerous roles. It is required that the President
and the Principal Judge of Court of Appeal and High Court respectively will appointed their
Chiefs of Staff.

The development for the Judicial Training Institute (JTI) is on course. The curriculum is being
drafted and the Director has been appointed. The JTI is to become judicial think tank, an institute
of excellence, the nerve centre of robust and rich intellectual exchange, where the interface
between the judiciary and contemporary issues in the society will occur.

THE  STRUCTURE/HIERARCHY  OF  COURTS  IN  KENYA

The Courts operate two levels:  Superior Courts and Subordinate Courts. The important aspects
in the Structure of Courts are:

i           The structure – The hierarchy or levels of Courts.

ii         Establishment – The composition or who presides in that Court.

iii        Jurisdiction – The powers of different Courts to hear and determine disputes.
Jurisdictions are either Geographical / territorial limits of their powers or Functional powers (to
hear Original matter, Appellate matter or both matters or subject matter (whether it is civil or
criminal justice) or Pecuniary ( the range of monetary or financial value of subject matter).

The figure illustrates the structure and explains the hierarch of the Courts as it is today in Kenya.
 The Figure: The Court Structure in Kenya

The arrow on the figure shows the hierarchy of courts in Kenya.  There are two levels of courts
Superior Court (consist of Supreme Court, Court of Appeal and High Court) and Subordinate
Courts ( Resident Magistrate Court, Kadhi Courts, Court Martials, Tribunals, District Magistrate
Courts Classes 1st, 2nd and 3rd.) The arrows show flow of appeal from one level to the next.
The arrows represent flow of appeals in both civil and criminal appeals except criminal appeals
from District Magistrate class III which go to Resident Magistrates courts. District Magistrate
courts are situated in all the districts except of District Magistrate Class III which in some
sparsely populated Districts especially North Eastern Province Kenya where their powers have
been delegated by the Chief Justice to the District Officers through notices in the Kenya Gazette.
This structure of the courts is based on the provisions of the Constitution, the Magistrates Court
Act (Cap. 10), the Kadhis Court Act (Cap. 11) and the Armed Forces Act (Cap. 199) Laws of
Kenya.

SUPERIOR COURTS

THE SUPREME COURT

The Supreme Court of Kenya is established under Article 163 of the Constitution of Kenya. It
comprises of 7 (Seven)  Judges: the Chief Justice, who is the president of the Court, the Deputy
Chief Justice, who is the deputy to the Chief Justice and the vice-president of the court and five
other judges.

The Supreme Court is properly constituted for purposes of its proceedings when it has a
composition of five judges and has exclusive original jurisdiction to hear and determine disputes
relating to the elections to the office of President arising under Article 140 and subject to clause
(4) and (5) of Article 163 of the Constitution, appellate jurisdiction to hear and determine appeals
from the Court of Appeal and any other court or tribunal as prescribed by national legislation.

Appeals from the Court of Appeal to the Supreme Court are as a matter of right in any case
involving the interpretation or application of this Constitution and in any other case in which the
Supreme Court, or the Court of Appeal, certifies that a matter of general public importance is
involved, subject to clause (5).
The Supreme Court may review a certification by the Court of Appeal and either affirms, vary or
overturn it.

The Supreme Court may give an advisory opinion at the request of the national government, any
State organ, or any county government with respect to any matter concerning county
government.

All courts, other than the Supreme Court, are bound by the decisions of the Supreme Court.

THE  COURT  OF  APPEAL

Establishment: The Court of Appeal is established under Article164 of the Constitution of Kenya
2010.
Composition: The Court of Appeal consists of a number of judges, being not fewer than 12
(twelve), as may be prescribed by an Act of Parliament and the Court is to be organized and
administered in the manner prescribed by an Act of Parliament. The Court comprises of a
President of the Court of Appeal who is elected by the judges of the Court of Appeal from
among themselves. The Court of Appeal Judges retire at the age of 74 years.

Jurisdiction: The Court of Appeal is a superior court of record therefore it sets precedents. It has
limited original jurisdiction. It was created to hear appeals from the High court.

The only moment the Court Appeal can have original jurisdiction is in punishment for contempt
of court, and when stating execution of orders of the High Court. Procedure: The practice and
procedure of the court of appeal are regulated by the rules of court made by the Rules Committee
constituted under the Appellate Jurisdiction Act (Cap. 9). The Act provides that an uneven
number of at least three judges shall sit for the determination of any matter by the court. The
decision of the court shall be according to the opinion of a majority of the judges who sat for the
purposes of determining that matter.

The court has powers to:

i           Determine a case finally.

ii         Order for a trial.

iii        Order for a re-trial.

iv       Frame issues for the determination of the High Court.

v         Receive additional evidence or order that it be taken by another court.

THE  HIGH  COURT

Establishment: The High Court is established under Article 165 and it consists of a number of
judges to be prescribed by an Act of Parliament. The Court is organized and administered in the
manner prescribed by an Act of Parliament. The Court has a Principal Judge, who is elected by
the judges of the High Court from among themselves.

Composition: Ordinarily, the High Court is duly constituted by one Judge sitting alone. However
there are instances where two or more High Court Judges may be required to determine certain
kinds of cases.
Appointment of Judges:  Are appointed by the President in accordance with the advice of
Judicial Service Commission. They are laid down special qualifications required of a person to
be eligible for appointment as a Judge, namely:

He / she is or has been a Judge of a Court having unlimited jurisdiction in civil and criminal
matters in some part of the Commonwealth or in the Republic of Ireland or a court having
jurisdiction in appeals from such a Court or;

He /she is an Advocate of the High Court of not less than seven years standing or;

He /she holds and has held for a period of or periods amounting in aggregate to not less than
seven years, one or other of the qualifications specified in Section 12 of the Advocates Act.

Jurisdiction:

i           The High Court has unlimited original jurisdiction in criminal and civil matters.

ii         The High Court has jurisdiction to determine the question whether a right or fundamental
freedom in the Bill of Rights has been denied, violated, infringed or threatened.

iii        The High Court has jurisdiction to hear an appeal from a decision of a tribunal appointed
under the Constitution or national legislation to consider the removal of a person from office,
other than a tribunal appointed under Article 144.

iv       The High Court has jurisdiction to hear any question respecting the interpretation of this
Constitution including the determination of: the question whether any law is inconsistent with or
in contravention of the Constitution, the question whether anything said to be done under the
authority of the Constitution or of any law is inconsistent with, or in contravention of the
Constitution, any matter relating to constitutional powers of State organs in respect of county
governments and any matter relating to the constitutional relationship between the levels of
government, and a question relating to conflict of laws under Article 191;any other jurisdiction,
original or appellate, conferred on it by legislation.

v         The High Court does not have jurisdiction in respect of matters reserved for the exclusive
jurisdiction of the Supreme Court under this Constitution or falling within the jurisdiction of the
courts contemplated in Article 162 (2).

vi       The High Court has supervisory jurisdiction over the subordinate courts and over any
person, body or authority exercising a judicial or quasi-judicial function, but not over a superior
court. Also being a Superior court of record means that the decisions of the High Court as
precedents, are binding on the subordinate courts by the doctrine of stare decisis.
vii      Although High Court has unlimited original jurisdiction in civil and criminal cases in
actual practice, it will hear those criminal cases which cannot be tried by the subordinate courts
i.e. murder and treason whereas in civil cases, it has jurisdiction where the value of the subject
matter, in dispute exceeds Kshs. 500,000.00. The High Court has power to pass any sentence
authorized by law.

viii    In addition to the ordinary civil and criminal jurisdiction or the High Court, there are other
matters, which can only be heard by the High Court. Thus, the High Court enjoys special powers
and jurisdiction in the following matters as conferred to it by the constitution and other
legislations some of which are given hereinafter:-

High Court Special Powers

1.   Supervisory Jurisdiction

The Constitution confers specific, powers on the High Court to exercise supervisory jurisdiction
in any civil and criminal proceedings before subordinate courts and may make such orders, issue
such writs and give such directions as may consider appropriate for the purpose of ensuring that
justice is duly administered by such courts. This includes the power of the High Court to transfer
proceedings from one court to the other.

To invoke the supervisory jurisdiction of the High Court a person must have exhausted all other
available remedies and right of appeal. In exercise of its supervisory powers under judicial
review, the high court may issue any of the prerogative orders of:

 Mandamus – The literal meaning of mandamus is “we command”. This is an Order issued by
the High Court to any person or body commanding him or them to perform a public duty
imposed by law or state. The order is available to compel administrative tribunals to do their
duty e.g. to compel a licensing board to issue a license on application of him who has met the
prescribed criteria.
 Certiorari – The term means to “be informed”. This is an Order issued by the High Court
directed at an inferior court body exercising judicial or quasi-judicial functions to have the
records of the proceedings presented to the High Court for the purposes: To Secure an
impartial trial, To review an excess of jurisdiction, To challenge an ultra vires act, To correct
errors of law on the face of the record.  To quash a judicial decision made against the rules of
natural justice. An order of certiorari will be wherever anybody of persons having legal
authority to determine questions affecting the rights and having a duty to act judicially, acts
in excess of their legal authority. It therefore serves to quash what has been done irregularly.
 Prohibition – This is an order issued by the High Court to prevent an inferior court or
tribunal from hearing or continuing to hear a case either In excess of its jurisdiction or in
violation of the rules of natural justice.
 Writ of Habeas corpus – Harbeas corpos means „produce the body‟, dead or alive. This order
is issued where the personal liberty of a person is curtailed by arrest and confinement without
legal justification. By issuing this order, the High Court calls upon the person holding the
body to answer by what authority are they continuing to withhold the individual and with the
aims at securing release of such persons held apparently without legal justification.
2.   Interpretation  of  the  constitution
The Constitution provides that where any question as to the interpretation of the constitution
arises in any proceedings in any subordinate court, and the court is of the opinion that the
question involves a substantial question of law, the court may, and shall if any party to the
proceedings so requests, refer the question to the High Court. The High Court shall be composed
of an uneven number of judges, not being less than three when it determines the constitutional
question referred to it. The decision of the High Court is binding on the Court that referred the
question to the High Court and it must dispose of the case in accordance with the High Court’s
decision.

3.   Admiralty  Jurisdiction

Section 4 of the Judicature Act Chapter 8 (1967) provide that the High Court will act as a court
of admiralty and will decide “matters arising on the high seas or in territorial waters or upon any
lake or other navigable inland waters in Kenya”. The law applicable to be exercised “the
conformity with international law and the comity of nations”.

4.   Election  jurisdiction

Under the National Assembly and Presidential Election Act, the High court has special powers to
hear and determine disputes arising from the national electoral process. The High Court may
make an order as it deems fit, including the nullification of the election results upon hearing of a
petition presented to it by a voter or loser in the election.

For the High Court to nullify the election of a Member of Parliament, the petitioner must prove
that an election offence has been committed. The composition of the High court is that one (1)
Judge sits to determine dispute in parliamentary election while Three (3) Judges must sit if it is
presidential election. Any appeal on the High Court decision on Presidential election goes to the
Court of Appeal where at least five (5) Judges will sit to determine the appeal. Disputes in the
election of councilors go to subordinate courts.

5.   Succession/Probate  Jurisdiction

The Probate Division of the High court has jurisdiction to hear any application and determine
any dispute and pronounce such decree and issue such orders as my be expedient in inheritance
matters e.g. the High Court may issue probate i.e. a person has been validly appointed by a will
to administer the property of the deceased.
6.   Matrimonial  Cases
The court exercises jurisdiction in divorce matters. In exercise of its matrimonial jurisdiction, the
High Court may issue orders for:

 Dissolution of marriage.
 Nullity of marriage.
 Separation and maintenance (alimony).
 Custody, adoption and guardianship of infants
 Spousal Property and financial adjustments etc.
7. Other powers
 To protect and enforce Fundamental rights and Freedoms of individuals which are set out in
Chapter Four of the Constitution also otherwise referred to as Bill of Rights.
 To hear and determine Bankruptcy proceedings.
 To supervise winding up of dissolved companies.
Kenya Court Hierarchy

Kenya is a country in which the Judiciary of Kenya is the system of courts which interprets as

well as applies the law.  There are courts both at the federal level and the state level and each is

responsible for its own set of functions and responsibilities.

The entire court system is divided into a hierarchical system wherein the superior courts consist

of Supreme Court, Courts of Appeal, High court and Industrial court etc. whereas the

subordinate courts are made up of Magistrate court, Kadhi court and others. To understand

the hierarchical system of courts in Kenya, you can read the following given information.
 THE SUPERIOR COURTS

The Supreme Court

The Supreme Court is the Apex court which is comprised of the Chief Justice, The President, the

deputy chief justice and five other judges.  The word of the Supreme Court is final and cannot be

negated by any other court. All the other courts fall beneath this court.

The Court of Appeal

This is the court which handles the appeal cases from the High court as well as those as

prescribed by the President.  This court comprises of not less than 12 judges and is headed by the

President who is appointed by the Chief Justice.

The High Court

This court has the supervisory jurisdiction over all the lower or subordinate courts and other

persons.

Industrial Court of Kenya

Next in the hierarchy of the Superior courts in Kenya comes the Industrial court of Kenya which

was established for the purpose of handling issues or cases related to employment and industrial

relations etc.

Environment and Land Court

This court is responsible for hearing and settling disputes which are related to the environment.

THE SUBORDINATE COURTS

Magistrate Court

This is the case where the majority of judiciary cases are heard and these courts are located in

each of the district of Kenya.  A chief magistrate heads each of the courts and some others who

are part of this court are the Senior Principal Magistrate, Senior Resident Magistrate, Resident

Magistrate and others.

Kadhi Court

This is the court which is responsible for hearing civil and criminal matters which are related to

Islamic law.  This court is headed by a chief Kadhi

Courts Martial

This is the military court of Kenya which mostly hears or settles those cases which are related to

the Kenya Defense Forces. Appeals that move on from this court are heard by the High court.

Sources of Law in Kenya: What is the Kenyan Law based on?

Laws in Kenya are formed and amended in different parts of the country's governing system.
Even though most of us only know about the constitution, there are other many places law
enforcement, the courts and our leaders in general draw guidance from whenever they want to
make a decision. The following is a credible list of the sources of law Kenya.
The government relies on these sources for it to get laws that it can then use to govern the people
of Kenya.
Main sources of law in Kenya - Top eight sources of law in Kenya
A source of law refers to the origin of law which constitutes its legal principle or law. When
talking about the sources of Kenyan law, therefore, this refers to the origin of the legal rules that
then constitute the Kenyan law. The different sources of law of Kenya are identified by Kadhi
court, judicature act, Hindu succession act, and the Hindu marriage and divorce act. The
following are some of the sources of law in Kenya.
The Constitution of Kenya This is presumably one of the most important sources of law in
Kenya. It is common for you to hear a lot of people quoting the constitution as the source of all
law. The constitution refers to a formal document that contains the rules, functions, and roles of
the constitution. These outlined details are meant to govern and guide the government
organizations and state bodies on how to relate with the public.
The constitution is the first document that is quoted whenever a law has to be referenced. In fact,
it is the sole document used whenever there is a legal emergency. It is therefore crucial for
citizens to understand its contents. The details of this could be what you need to get yourself out
of a tricky situation.
Acts of parliament When looking at the formal sources of law in Kenya, the acts of parliament
cannot be ignored. Before enactment of a law, it is referred to as a bill. The chosen and elected
members of parliament need to debate on a variety of basic issues affecting the lives of common
Kenyans. Once the debates end in suitable conclusions, then a law is made.
Judicial precedents or common law These refer to laws that have been made by judges.
Judicial precedents occur when a judge looks at a certain law and makes specific conclusions
regarding it. These types of laws are manly in four types according to the legal system. These are
the original, declaratory, overruling, and distinguishing precedents.
Acts of UK Parliament This is a source of Kenyan law that deals with matters concerning
foreign tribunal evidence act of 1856. It also has the 1851 evidence as well as the 1857 law of
ascertainment act. This is a crucial source of law since its specifications combine with the
international law.
Acts of Indian Parliament This source of law addresses property ownership and transfer acts in
the country. It is the law that governs the legal aspect of property. People ought to ensure that
their properties are secure as provided by law.
Customary law This refers to the norms and practices/ traditions that are usually unwritten.
They have been going on for so long that they are finally considered law. They may have existed
before the colonial era but have undergone some thorough transformations over time without
necessarily being eroded. The customary law is localized and very diverse as it is dependent on
the community involved. However, there are certain principles that are held as consensus
principles.
Islamic or Sharia law This source of law is found in article 7 of The Kenyan Constitution. It
applies in inheritance and personal status for community members to whom it applies. This kind
of law is applied in the Khadhi courts of Kenya and only applies if the parties involved in the
case are both Muslims or of the Islamic religion.
Subsidiary legislation This refers to any proclamation, rule, order, proclamation, court ruling or
even other instrumental that has a legislative effect. The subsidiary legislation applies to issues
needing a general application of the law more so those that contain substantive laws or rules.
You should know the different law sources especially if you find yourself in a situation where
you have to use the law to defend yourself. Understanding these sources can help you strengthen
your argument. After all, it is a smart move to learn about the laws of your land because when
you can get yourself in trouble and ignorance will not be an excuse. READ ALSO: Swahili
Kaimati Recipe: How to Prepare the Tasty Snack If not all the sources, focus on reading The
Constitution because it is the basic document that covers all the necessary laws in Kenya, and is
mostly referred to as the law of the land. Regardless of your religious affiliations or ethnic
background, the fact that you are Kenyan means that you are under The Constitution which
offers the guidance you need. Knowing what is in The Kenyan Constitution will work for your
own good. Read more: 
NATURE AND CLASSIFICATION OF LAW

The term “law” has no assigned meaning.  It is used in a variety of senses.  Though different
writers have attempted to explain the term, no generally acceptable explanation has been given.
Different writers explain the term law from different points of view.  The study of law is referred
to as jurisprudence or legal philosophy.

According to Hart Law is a coercive instrument for regulating social behaviour.  Law has also
been defined as a command backed by sanctions.  These two explanations of the term law
presuppose the existence of a sovereign, which prescribes or formulates the commands and
enforces sanctions, which is not necessarily the case.
According to Salmond, law consists of a body of principles recognised and applied by the state
in the administration of justice.  Law has also been defined as a collection of binding rules of
human conduct prescribed by human beings for obedience of human beings.  Inevitably,
therefore law implies rules or principles enforced by courts of law.  Rules of law are binding
hence differ from other rules or regulations.  Rules of law are certain.

In summary therefore, law is an aggregate of conglomeration of rules enforced by courts of law

at a given time.

Rules of law originate from acts of parliament, customary and religious practises of the people,
they may also be borrowed from other countries.

Law and Morality

Morality consists of prescriptions of the society and is not enforceable, however, rules of law are
enforceable.  Wrongs in society are contraventions of either law or morality or both.

However, law incorporates a significant proportion of morality and to that extent morality is
enforceable.
However, such rules/contraventions are contraventions of law for example murder, rape theft by
servant or agent.

Purposes or Functions of Law

(i)    Rules of law facilitate administration of justice.  It is an instrument used by human beings to
achieve justice.

(ii)   Law assists in the maintenance of peace and order.  Law promotes peaceful co-existence,
that is, prevents anarchy.

(iii)  Law promotes good governance.

(iv)  Law is a standard setting and control mechanism.

(v)        Provision of legal remedies, protection of rights and duties.

Types and Classification of Law

Rules of law may be classified as:

·         Written
·         National and International
·         Public and Private
·         Substantive and Procedural
·         Criminal and Civil

Written Law
These are rules of law that have been reduced into a written form.  They are embodied in a
formal document for example The Constitution of Kenya, laws made by parliament (statutes). 
Such laws prevail over unwritten Law.

Unwritten Law
These are rules of law that have not been reduced into written form.  They are not embodied in
any single document for example African Customary Law, Islamic Law, Hindu Law, Common
Law, Equity.  Their existence must be proved.

National or Municipal Law

These are rules of law operational within the boundaries of a country.  It regulates the relation
between citizens and between citizens and the state.  It is based on Acts of Parliament, customary
and religious practices of the people.

International Law
It is a body of rules that regulates relations between countries/states and other international
persons egg United Nations.  It is based on international agreements of treaties and customary
practices of states and general principles.

Public Law
It consists of those fields or branches of law in which the state has an interest as the sovereign
egg criminal law, constitutional law, administrative law.
Public law is concerned with the constitution and functions of the various organs of government
including local authorities, their relations with each other and with the citizens.  Public law
asserts state sovereignty/power.

Private law
It consists of those fields or branches of law in which the state has no direct interest as the
sovereign egg law of contracts, law of tout, law of property, law of succession.

Private law is concerned with day to day transactions of legal relationships between persons.  It
defines the rights and duties of parties.

Substantive Law
It is concerned with the rules themselves as opposed to the procedure on how to apply them.  It
defines the rights and duties of parties and provides remedies when those rights are violated e.g.
law of contract, negligence, defamation.  It defines offences and prescribes punishment e.g.
Penal Code Cap 63.

Procedural Law
It consists of the steps or guiding principles or rules of practice to be complied with or followed
in the administration of justice or in the application of substantive law.
It is also referred to as adjective law e.g. Criminal Procedure code Cap 75, civil procedure Act
Cap 21.

Criminal Law
Criminal law has been defined as the law of crimes.  A crime has been defined as an act or
omission, committed or omitted in violation of public law egg murder, manslaughter, robbery,
burglary, rape, stealing, theft by servant or agent.
All crimes or offences in Kenya are created by parliament through statutes.  Suspects are arrested
by the state through the police.  However, individuals have the liberty to arrest suspects. 
Offences are generally prosecuted by the state through the office of the Attorney General.

When charged with a particular offence the suspect becomes an accused hence criminal cases are
styled as R V Accused.  Under sec 77 of the constitution the person cannot generally be
prosecuted for an act or omission which was not defined by law as a crime when committed or
omitted.  Under section 77 (2) (a) of the constitution an accused person is presumed innocent
until proven or has pleaded guilty.  It is the duty of the prosecution to prove its case against the
accused.  The burden of proof rests on the prosecution.

The standard of proof in criminal cases is beyond any reasonable doubt.  In the event of any
reasonable doubt the accused is set free (acquitted). The court must be satisfied that the accused
committed offence as charged.  If the prosecution discharges the burden of proof the accused is
convicted and sentenced which could take any of the following forms.

(a)                Imprisonment term
(b)               Capital punishment
(c)                Corporal punishment
(d)               Community service
(e)                Fine
(f)                Conditional discharge
(g)                Unconditional discharge

The purpose of criminal is;

·         To ascertain whether or not the crime has been committed.
·         To punish the crime where one has been committed.

Civil Law
Civil law is concerned with violations of private rights in their individual or corporate capacity
egg breach of contract, negligence, defamation, nuisance, passing off trespass to the person or
goods.

If a person’s private rights are violated, the person has a cause of action.  Causes of action are
recognized by statutes and by the common law.  The person whose rights have been allegedly
violated sues the alleged wrong doer.  Hence civil cases are styled as Plaintiff v Defendant.  It is
his duty of the plaintiff to adduce evidence to prove his case the burden of proof lies on the
plaintiff.

The standard of proof in civil cases is on a balance of probabilities or on a preponderance of

probabilities.  It must be more probable than improbable that the plaintiff’s allegations are true. 
If the plaintiff discharges the burden of proof then he wins the case and is awarded judgement
which could take any of the following forms:

(a)                Damage, i.e. monetary compensation

(b)               Injunction
(c)                Specific performance
(d)               Tracing
(e)                Accounts
(f)                Rescission
(g)                Winding up/liquidation

Purpose of civil laws

(i)         Protection of rights and enforcement of duties.
(ii)        Provision of legal remedies as and when a persons rights have been violate
1.         SOURCES OF KENYA LAW

1.1  A source of law is the origin of the rule, which constitutes a law, or legal principle.  The
phrase `sources of Kenya law' therefore means the origin of the legal rules which constitute
the law of Kenya.

The various sources of law of Kenya are identified by the Judicature Azt, Kadhis Court 
Act, the Constitution, Hindu Marriage and divorce Act and the Hindu Succession Act.
1.2            The Judicature Act Cap 8, Laws of Kenya

The sources of Kenya law are specified in the Judicature Act 1967, S.3(1) of which states that
the jurisdiction of the High Court, the Court of Appeal and all subordinate courts shall be
exercised in accordance with:

                        (i)         the constitution;

(ii)   subject thereto, "all other written laws", (including certain Acts of Parliament of the United
Kingdom which are cited in Part I of the Schedule to the Act), and

                        (iii)       subject thereto and so far as the (aforesaid) written laws do not extend or
apply:
                 (a)        the substance of the common law;
                 (b)        the doctrines of equity, and
                 (c)        statutes of general application in force in England on 12th August 1897.

S.3 (2) states that "the High Court, the Court of Appeal and all subordinate courts shall
be guided by African customary law in civil cases in which one or more of the parties is subject
to or affected by it, so far as it is applicable and is not repugnant to justice and morality or
inconsistent with any written law".

1.3            The Kadhi's Courts Act 1967

Section 5 of the Kadhi's Courts Act provides that a Kadhi's Court shall have and exercise
jurisdiction in matters involving the determination of Muslim Law relating to personal status,
marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim
religion.  This provision constitutes Muslim Law a source of Kenya law for the specified
purposes.

1.4  The Hindu Marriage and Divorce Act 1960, S.5 (1) provides that a marriage between
Hindus may be solemnized in accordance with the customary rites and ceremonies of either
party thereto.

The provision constitutes Hindu custom a source of Kenya law for the specified purposes.

1.5            The Legal Pyramid

The sources of Kenya law mentioned above may be summarised with the aid of the following
diagram or "legal pyramid":
 Delegated
legislation

NOTE:                                                       

     The sources of Kenya law consist of

     (a)        written laws, and
     (b)        unwritten laws.

1.    The unwritten laws are derived, generally speaking, from the customs of the ethnic groups
which constitute Kenya's indigenous population and the rules or rites of Islam and Hinduism.
There is nothing strange or peculiar about this situation.  In England, for example, the general
customs of the English people constitute a major source of English law which is known as the
common law.  The principles of Christianity have also made some contribution to the
development of English law, especially family law.

2.       A written law is defined by the Interpretation and General provisions Act as:

          (a)        an Act of Parliament for the time being in force (other than the Constitution);

          (b)        an applied law; or

          (c)        any subsidiary legislation for the time being in force.

1.6            STATUTE LAW

This is an Act of Parliament.  This is law made by parliament directly in exercise of legislative
power conferred upon it by the constitution.

Section 46(5) of the Kenya Constitution states that "a law made by Parliament shall be styled an
Act of Parliament".

1.7            Bills

An Act of Parliament begins as a Bill, which is the draft of law that Parliament intends to make. 
Section 46(1) of the constitution states that "the legislative power of Parliament shall be
exercisable by Bills passed by the National Assembly".

                        Types of Bills

                        A Bill may be:
(i)    A Government Bill, if it is presented to Parliament by the Government with a view to its
becoming a law if approved by Parliament.

(ii)   A Private Members' Bill if it is presented to Parliament by some members, in a private

capacity and not on behalf of the Government. 

                        Bills may also be divided into Public Bills and Private Bills.

(a)   A Bill, whether a Government Bill or a Private Members' Bill, is a Public Bill if it seeks to
alter the law throughout Kenya.  An example is the abortive Marriage Bill, 1979, whose aim was
to introduce a uniform marriage law for all Kenyans irrespective of their racial, religious or
ethnic differences.

(b)   A Private Bill if it does not seek to alter the general law but rather to confer special local
powers.  An example is where a local authority such as a Municipal Council requires power to
purchase land compulsorily.