Constitution, Law & Legal System – Key Concepts (Vocabulary)

A comprehensive set of vocabulary flashcards covering legal systems, precedent, jurisdiction, statutory interpretation, Kenyan law education, and professional ethics as described in the notes.

Legal system

The framework of rules, institutions, and traditions through which laws are created, applied, and enforced.

Constitution

The supreme law of a country, written or oral, that sets the framework for government and law.

Primary legislation

Statutes enacted by a constitutionally authorized body.

Subsidiary legislation

Bylaws or regulations made under the authority of primary laws.

Customary law

Traditional rules upheld by courts as part of a jurisdiction’s heritage.

Islamic law

Personal status law applicable to Muslims, implemented in Kenya via Kadhi’s Courts.

Kadhi’s Courts

Courts handling Muslim personal status matters within Islamic law.

Hybrid legal system (Kenya)

A legal system blending English common law, statutory law, customary law, and Islamic law where relevant.

2010 Constitution Art. 2

The supreme law of Kenya; any law inconsistent with it is void.

Keep the peace

One of the six core functions of law; maintain order and prevent anarchy (criminal law).

Shape moral standards

Laws that reflect societal values (e.g., anti-corruption, family protection).

Promote social justice

Laws that protect vulnerable groups and promote equality.

Facilitate orderly change

Allow legal evolution (e.g., constitutional amendments) without chaos.

Provide a basis for compromise

Facilitate mediation, arbitration, and plea bargaining.

Help facilitate a plan

Enable structured governance, development, and regulation.

Sanction (two meanings)

In law-making: to authorize; can also mean to punish or restrict, though mainly used as authorization in this context.

Values

Core beliefs about what is good/bad, right/wrong guiding social behavior.

Norms

Action-oriented beliefs that guide daily behavior; how people are expected to behave.

Folkways

Everyday customs; breaking them is rude but generally not criminal.

Mores

Strong moral norms; breaking them provokes condemnation and social sanction.

Laws (formal norms)

Formalized norms backed by government sanctions when adopted by the State.

Vertical Law Enforcement

State enforcement from above: democratic mechanisms and coercive penalties to ensure compliance.

Simplicity

Clear, understandable laws; ambiguity can lead to misuse.

Comprehensiveness

Laws should cover all areas of life and anticipate future issues.

Certainty

Clear prohibitions and permissions; reduces legal uncertainty.

Accessibility

Public access to the law (e.g., online statutes) to prevent manipulation.

Flexibility

Laws that adapt to social change and new circumstances.

Effectiveness

Laws must function in practice; not merely exist on paper.

Equity

Fairness and justice in the application of the law.

Precedent

Doctrine of following principles established in earlier cases (stare decisis).

Stare decisis

Latin for 'stand by the decision'; courts follow established precedents for consistency.

Ratio decidendi

The binding legal principle or reason for the court’s decision.

Obiter dicta

Judicial comments made in passing; not binding but may be persuasive.

Original precedent

A new legal rule created when there is no past case on point.

Binding precedent

A past decision that must be followed due to higher or equal status.

Persuasive precedent

Non-binding precedent that a judge may consider following.

Point of Law

Legal questions about interpretation or application of the law.

Point of Fact

Questions about what actually happened; decided by fact-finders (jury or judge).

Distinguishing

A court notes differences in facts that are enough to avoid following a precedent.

Overruling

A higher court replaces a past rule with a new one.

Reversing

A higher court changes the decision in the same case on appeal.

Jurisdiction

Legal authority of a court to hear and decide a matter; power and limits.

Geographic jurisdiction

Geographic area within which a court legally may hear cases.

Subject matter jurisdiction

Authority to hear cases of a particular type or legal issue.

Pecuniary jurisdiction

Monetary limits determining which court may hear a civil claim.

Original jurisdiction

Power to hear a case for the first time (not on appeal).

Appellate jurisdiction

Power to review and decide appeals from lower courts.

Exclusive jurisdiction

Only a specific court may hear a particular type of case.

Statutory interpretation

Judicial task of determining what a law means and how it applies to real facts.

Literal Rule

Words are given their plain, ordinary meaning without twisting the text.

Golden Rule

Modify literal meaning to avoid absurd or unjust outcomes.

Mischief Rule

Interpret statutes to cure the mischief the old law aimed to address.

Purposive Approach

Interpret law based on its purpose, spirit, and underlying values.

Crispus Karanja doctrine

In Kenya, read the Constitution purposively and liberally to fulfill its aims.

Interpretation and General Provisions Act (Cap 2)

Kenyan Act providing standard meanings for common words in laws.

Dina Management Ltd v County Government of Mombasa (2021)

A case illustrating the Literal Rule in action: lawful application of literal meaning.

Charo v Republic (2016)

Case illustrating the Golden Rule: adjusting literal meaning to avoid unjust outcomes.

Njoya v Attorney General (2004)

Case illustrating the Mischief Rule: addressing mischief in constitutional amendments.

Lilian S v Caltex Oil (Kenya) Ltd (1989)

Jurisdiction is everything; without jurisdiction a judgment is void.

Kenya School of Law (KSL)

Professional training institution for lawyers after the LL.B.

Advocates Training Programme (ATP)

Post-LL.B vocational training required to become an advocate.

Pupillage

Practical training under a qualified advocate, typically 6–12 months.

Council of Legal Education (CLE)

Regulates legal education, approves degrees, and administers bar exams.

Law Society of Kenya (LSK)

Professional body regulating advocates and upholding ethical standards.

Advocates Act

Legislation governing the regulation and conduct of advocates.

Objects of the Legal Profession

Prioritize clients’ interests, serve courts, uphold standards, and maintain public confidence.

Ethical duties

Honesty, confidentiality, avoiding conflicts of interest, competence, and decorum for advocates.