UNIT CODE: BAF2105 UNIT NAME: BUSINESS LAW

CHAPTER 1
INTRODUCTION, THE MEANING AND NATURE OF LAW, FUNCTIONS
OF LAW. CLASSIFICATION OF LAW, SOURCES OF LAW

 What is law?
There is no exhaustive definition of law. Different definitions which have been offered by
various legal scholars are a reflection of the scholar‘s political, cultural and economic
environment of the societies they live in. some of the definitions which have been offered
include:a) A law is a general rule of external human action enforced by a sovereign political
authority. (Holland).
b) Law consists of a body of rules which are seen to operate as binding rules in that
community by means of which sufficient compliance with the rules may be secured to
enable the set of rules to be seen binding. (Panton).
c) Law is the body of principles recognized and applied by the state in the administration of
justice. (Salmond).
d) A law is a rule of conduct imposed and enforced by the sovereign. (Austin).
e) A body of rules for the guidance of human conduct. (Philip S. James).
 Therefore, the law of state consists of those rules of conduct and standards prescribed by the
people in authority for governing and regulating peaceful relations between members of a
particular community or state.
These rules may originate from Acts of parliament or Customs, and are enforced by the duly
constituted courts of law. Enforcement by the courts takes the form of punishment in criminal
cases, or an order to pay damages or deliver property in civil actions.
Legal wrongs are to be distinguished from rules of morality which are not enforced by the
courts
unless the moral legal wrongs are enforced by the courts but moral laws are not unless they
are
part of the laws of the state.
 Classification of Law
The law is devised into various main classifications:
1) Public law
Private law
2) Criminal law
Civil law.
Public law is the branch of law that regulates the relationship between the state and its citizens.
This branch of law establishes various state organs and their roles/ functions. Examples of
aspects of public law include constitutional law, administrative law and criminal law.
On the other hand, private law is the branch of law that regulates the relationships that occur
between citizens living in a state in their private capacity. This includes law of contract, law of
torts, law of agency, etc.
Crime is an act, default or conduct prejudicial to the community, the commission o which, by
law renders the person responsible liable to be prosecuted and punished accordingly.
 Prosecution for crimes is always conducted in the name of the state, i.e, the state vs. the
person.
 It is the duty of the prosecution to establish the guilt of the accused beyond any
reasonable doubt.
Examples of crime include: murder, grievous bodily harm, rape, robbery, theft, etc.
Crime must be provided for by the law. The bulk of criminal offences is provided for in the penal
code, but there are other Acts of Parliament which provides for criminal offences, e.g. the
Traffic
 UNIT CODE: BAF2105 UNIT NAME: BUSINESS LAW
CHAPTER 1
INTRODUCTION, THE MEANING AND NATURE OF LAW, FUNCTIONS
OF LAW. CLASSIFICATION OF LAW, SOURCES OF LAW

Act, Public Health Act. Etc.

Punishment for crime ranges from hanging to a fine.
 Primarily concerned with the isolation of private rights, belonging to an individual in his
capacity as an individual, e.g. refusing to pay back a loan.
 The plaintiff is the one that institutes the matter in the court and the duty of proving (on
burden of proof) lies on him.
 On plaintiff‘s succeeding in a civil action, the defendant will be ordered to compensate
him by paying damages. Therefore, the parties in a civil suit are the plaintiff and the
defendant. There are three remedies available in a civil action. These are:
1. Damages: a common law remedy designed to compensate the innocent party by ward of
damages.
2. Specific Performance: a court order directing the defaulting party to carry out his specific
obligations, where damages are not adequate remedy.
3. Injunction: this is a court order demanding a person to do a thing or refrain from doing a
particular act.
Civil wrongs include: Breach of contract, breach of tort, trust, law of succession, law of
property.
Other branches of law include procedural law and substantive law.
Procedural law: lays down the rules in detail from the guidance of the courts regulating the
manner in which the proceedings are required to be conducted in civil and criminal
cases.Substantive Law: includes actual rules of law as opposed to adjective or procedural law.
It defines civil and criminal wrongs and provides remedies for each type of offences or civil
wrongs
 Sources of Law in Kenya
The Judicature Act (Cap 8 Laws of Kenya) provide for the sources of law in Kenya. These are:
1. The Kenya Constitution
2. All other written laws including the sets of Kenya Parliament and of the United Kingdom
cited in part I of the schedule of this Act, modified in accordance with part II of that
schedule.
3. The substance of the common law, the doctrine of equity and august 1897. They apply so
far only as the circumstances of Kenya and its inhabitants permit and subject to such
qualifications as those circumstances may render necessary. Sec. 3 (c).
4. African Customary Law. Sec 3 (2).
5. Islamic Law
6. Case law or judicial precedent.

 THE CONSTITUTION
The constitution establishes the structures of governance within a state by establishing
major state organs. Kenya has had a long history of constitution making culminating in the
promulgation of the current constitution in August 2010.
The constitution is the supreme law of the land and all the other sources of law as
aforementioned should conform to the constitution. Otherwise, if they do not conform to
the constitution, they are null and void. Kenyan constitution is divided into various chaptes
which include:
 Chapter One: Sovereignty of the People and the Constitution
 Chapter Two: The Republic
UNIT CODE: BAF2105 UNIT NAME: BUSINESS LAW
CHAPTER 1
INTRODUCTION, THE MEANING AND NATURE OF LAW, FUNCTIONS
OF LAW. CLASSIFICATION OF LAW, SOURCES OF LAW

 Chapter Three: Citizenship

 Chapter Four: Bill of Rights
 Chapter Five: Land and Environment
 Chapter Six: Leadership and Integrity
 Chapter Seven: Representation of the People
 Chapter Eight: The Legislation
 Chapter Nine: The Executive
 Chapter Ten: The Judiciary
 Chapter Eleven: Devolved Government
 Chapter Twelve: Public Finance
 Chapter Thirteen: Public Service
 Chapter Fourteen: National Security
 Chapter Fifteen: Commissions and other Independent Offices
 Chapter Sixteen: Amendment
 Chapter Seventeen: General Provisions
Chapter 18 is on transitional and consequential provisions
Schedules
 Schedules...these are six namely; counties, National symbols, National oaths and
affirmations, distribution of functions between national and the county governments,
legislation to be enacted by the parliament and finally. transitional and consequential
provisions
To summarize the above, I have mentioned on the definition of law, purpose of law,
classification of law, as well as divisions of civil law. Revision Quiz . List down the main sources
of Law in Kenya.