Adversarial system

Adversarial system is a system of law generally adopted by common law

countries where two advocates represent their parties’ cases or position before
an impartial person (usually the Judge) who determines the truth and passes a
judgment accordingly (the court has a passive role in listening to what both
parties hold and make a final decision based on the same).
In this system the prosecution and defence compete each other and the judge
is the present neutral person to ensure fairness and that the criminal
procedures are followed. In such a system, the court cannot invite itself and
give an order which a party had not prayed for.
Adversarial system is one of the two legal traditions that dominate the nature
of investigation and adjudication around the world. The adversarial system
believes that the way to get the justice is through a competitive process to
determine the facts and application of the law accurately. 1 Justice is based on
fairness and equity in the eyes of the law. It is based upon the evidence that is
present.

ROLE OF THE PARTIES

The adversarial parties have control over the proceedings. They are responsible
for pretrial procedures, preparation and presentation of their respective cases.
They must gather evidence and organize witnesses.

ROLE OF THE JUDGE

The judge’s main role in this kind of system is to ensure control proceedings
and that rules and proceedings are followed. 2
He is the impartial person in this system.

RULES OF EVIDENCE AND PROCEDURE

1
<https://www.undoc.org/e4j/en/organized-crime/module-9/key-issues/adversarial-vs-inquisitorial-legal-
systems.html>. accessed on 10th August 2020.
2
‘Features of the adversary system of trial’, < http://wiki.engageeducation.org.au/legal-studies/unit-4/area-of-
study-2-court-processes-and-procedures-and-engaging-in-justice/features-of-the-adversary-system-of-trial/>.
Accessed on 10th august 2020.
Rules of evidence and procedure are strict in the adversary system of trial, and
aim to ensure that the trial is fair and unbiased, and that parties have an
equal opportunity to present their case.

ADVERSARIAL SYSTEM IN KENYA

The Kenyan judicial system is one of an adversarial system. Kenya’s legal
system has evolved from the inheritance of its English common law. The said
inheritance can be attributed to the fact that Kenya was colonized by Britain
and when she attained her independence, she adopted the colonial
constitution.
Kenya’s legal system falls categorically under the mixed system comprising of
customary law, Islamic law, and English common law. There has been
challenges in determining the main category under which Kenya’s legal system
falls, but from the provisions of different statutes and articles of the new
constitution 2010, her legal system is adversarial in nature. 3 in summary,
Kenya’s mixture of different legal systems emerges as adversarial during court
proceedings. 4

3
Chapter 10 of the laws of Kenya,
4
Valariah Wanjala, ‘The Nature of the Kenya Legal System Course: Legal Systems and Legal Methods’
<https://www.academia.edu/35327321/The_Nature_of_the_Kenya_Legal_System_Course_Legal_Systems_and_Le
gal_Methods>. Accessed on 11th august 2020.