LAW AND GOVERNANCE
LAW AND GOVERNANCE
Law is a body of principles recognised and applied by a state in administration of justice.
Purpose/function of law
To ensure political stability in a country.
Additionally, law serves to protect individual rights and freedoms.
Law ensures economic growth and stability of a country.
It resolves disputes.
Promotes democracy and equality.
It upholds social justice.
Furthermore, the law prevents abuse of power.
Accountability is promoted.
To understand the purpose of law is to appreciate the rule of law.
What is the rule of law?
It is the rule whereby no one is above the law.
It is the rule that everyone is under the law whether you are a public officer or an ordinary person.
It is the law that all are equal in the eyes of the law.
The law is a manifestation of the will of the people.
Factors that undermine the rule of law
Corruption.
Ignorance of the law
Impunity.
Non independent judiciary.
Discriminatory prosecutions.
Social unrest.
Morality-They are principles concerning distinction between right or wrong and bad or good behavior
Mor morality is a sense of judgment between right or wrong with respect to standards of behavior which are acceptable by the society and binding on the conscience of the individual.
The law and morality are not always on the same page it is unlawful to kill and yet it is moral to killed protect innocent lives.
Similarities between law and morality
They both sick to improve the lives of human beings
They both regulate behavior so as to maintain social order
The both the boss protect fundamental rights and freedoms of individuals
The both distinguish between right and wrong actions
The both promote justice
The both use a similar language to promote their concepts
Differences between law and morality
Law is formerly written and codified by legal instructions while morality is informal and written and based on personal societal ethical beliefs
Law is enforced bioterity such as police court or state agencies while morality is in enforced informally through social pressure community judgment or personal conscience i.e guilt
Law is limited to actions that are considered offenses or crimes within a particular jurisdiction while morality governs the actions and in actions and has no limited jurisdiction
Law is source from official sources such as constitution and parliament while morality is based on culture religional or philosophical beliefs
Morality is part of ethics and ethics is defined as a branch of philosophy that deals with moral principles guiding what is right or wrong good and bad in human behavior and decision making
SOURCES OF MORALITY
Religion EG the ten commandments
Cultural traditions like customs and practices of the society
Law. The law said standards of what is acceptable or unacceptable
Personal conscience it is shaped by bringing experiences and personal reflections
Social conventions societal norms expectations in agreements can guide behavior
CLASSIFICATION OF LAW
Law is divided into different forms
1. Written and unwritten laws
2. Substantive and procedural law
3.Public and private law
4.Criminal and civil law
5.Municipal or national and international law
WRITTEN AND WRITTEN LAW
This is the law that has been put into writing and contained in a formal document it is codified
TYPES /EXAMPLES OF WRITTEN LAW
1 The Kenyan constitution
2 acts of parliament
3.Deligated legislation
4.certain acts of the UK parliament
5.Statutes of general application of England
Unwritten law is not contained in any formal documents. It's existence must be proven
It is uncodified i.e not contained in any doc.thus needs to be proven.
TYPES/EXAMPLES OF UNWRITTEN LAW
1.Common law
Equity law
Case law
African customary law
Islamic law
Hindu laws
SUBATANSIVE & PEOCEDURAL LAW.
Substansive law is the law itself as opposed to the procedure of application
It is the law containing the rights and duties of individuals and the remedies (solutions) where there is a violation of the law e.g the law of contract the law of tort ,law of insurance,law of property, criminal law,civil law.
Procedural law is defined as the steps or guiding principles in the application of substance law
What is the application of substantive law so as to ensure the administration of justice EG marriage procedure rules,land acquisition rules ,criminal procedure rules .
PUBLIC AND PRIVATE LAW
Public law is the law in which the government has a direct interest in.
It is the law concerned with how government performs its functions.
What is the law that influences how citizens interact with each other and the function of the government towards the citizens.
If one violates public law then it is known as a crime.
The state will prosecute such that in the court it will be prosecutor versus defendant example constitutional law, administrative law, criminal law, property law, environmental law, labour law.
PRIVATE LAW
It is concerned with the legal relationship between citizens in their private capacity.
The state has no direct interest .
If you violate private law it is known as civil wrong.
Individuals who each other in court such that it is the plaintiff versus the defendant.
Examples of private law that has follows :
1. Contract law.
2. Law of tort.
Family law.
Law of succession
Intellectual property law
Insurance law
CRIMINAL LAW AND CIVIL LAW
Criminal law is the law of crime
A crime is an omission of violation of public law EG mother robbery fraud rape
In a court case that is criminal in nature it is prosecutor versus defendant.
The state has a direct interest in criminal law normally the state six a punishment for criminal cases so as to discourage criminal behavior examples of punishment include: in prisonment finds, house arrest, probation, counseling or rehabilitation, punishment or exile, seizure of property(forfeiture), death penalty, restitution, probation, community service, capital punishment.
The one may be found to have a little criminal law they're known as a suspect in they are entitled to certain rights.
RIGHTS OF A SUSPECT
To be informed of the reason of arrest.
To remain silent and the consequences of not to.
The rights to access an advocate or lawyer.
Try to be held separately from person serving a sentence.
To be brought before a court as soon as possible.
To be considered innocent until proven guilty.
To be given sufficient time to prepare a defense.
Right to a fair trial.
Right to be presented during the trial.
To be given an opportunity to be heard .
To be given notice before a hearing.
If the above rights are respected then we say that the principles of natural justice have been abided by .
There are two primary principles of natural justice
a). The right to a fair hearing (Audi alteram partem-hear the other side)
b). The rule against bias (nemo judex in causal sua- no one should be a judge in their own case)
CIVIL LAW
Law concerned the rights and duties of a person.
It is concerned with the interaction between the citizens of the government doesn't have a direct interest
In a civil case in court we have the plaintiff versus the defendant
Example of civil wrongs are as follows: trespass, defamation , breach of contracts, nuisance, negligence, intellectual property dispute
The law in a civil case seeks to first provide a solution before punishment
CIVIL LAW REMEDIES
These are remedies that the plaintiff can be awarded
a). Abatement- remove the thing causing the nuisance eg dether a goat that trespasses
b).Damages- monetary compensation
c). Specific performance - this is a compulsion to perform the services or act as stated in the contract
d). Injunction - is an order to stop doing something or to do something for example go to court get an order to stop a person from demolishing
e). Quantum merit - this is pay for the work that has been done it is also known as a reasonable sum of money for the work for example I travel with a car good to ngara and pay for the fuel
f). Rescission - it is the cancellation of the contracts to return the parties to the original position before the contract was made
g). Restitution- is a remedy to prevent unjust enrichment by requiring the defendant to return the benefits the unfairly received from the plaintiff
h). Receivership- is putting the company under new management for the benefit of creditors who has to enable that repayment
i). Liquidation- bring the company to an end
BRANCHES OF CIVIL LAW
LAW OF CONTRACT
LAW OF TORT
LAW OF PROPERTY
LAW OF AGENCY
FAMILY LAW
MUNICIPAL/NATIONAL AND INTERNATIONAL
municipal law is the law applicable within a country
It regulates relationships between citizens as well as the state
The law is valid and enforced within Kenya the origin of national law is:
a. The Kenyan constitution
b. The parliament
c. Delegated legislation
d. Customs and practices of the people of Kenya
INTERNATIONAL LAW
Is the law that regulates relationships between countries and international bodies
These laws may exist in the following forms:
a. International criminal law
b. Maritime international law
c. International trade law
d. International environmental law
e. International labor law
f. International space law
g. International dispute resolution law
This law is applied at the international court of justice
The international court of justice is the world court and is the main judicial organ of the United Nations
ESTABLISHMENT
The international court of justice is established under the united nation charter to settle dispute between States in accordance with international law.
COMPOSITION
It is duly composed of such number of judges (15) elected by the united nation general assembly and the security council for a 9 year term.
JURISDICTION
Is deals with the following matters :
International trade
International boundaries
International crime
Diplomatic relationship
Environmental protection
War
Dispute of water and space
Sources of πππ
The ππππππππππππ
legislature /πππππππππππ/ππππππππππ
delegated or subsidiary πππππππππππ
acts of the UK πΏπππππππππ
Statutes of general application of π΄ππππππ
Common πππ
Equity πππ
π²πππ πππ
π°ππππππ πππππππππ’ πππ
πΈππππππ πππ
π·ππππ πππ
ππππππ
πΌππππ πππ ππππππ.
πππ ππππππ ππ πππ ππππππs ππ π ππππ πππ ππππ ππ ππππππππππ ππ π ππππππππππ πππππππ’.
Constitution
πΈπ ππ πππ πππππππ ππππππ ππ πππ ππ ππππ’π πππ ππ ππ π ππππ’ ππ πππππ πππππ πππ ππππππππππ ππ’ π ππππ ππππ’πππ ππππ ππππππππ ππ ππ ππππππππ.
πΎππ πππππππ ππππππππππππ π ππ πππππππππππ ππ 2010 & ππ ππππππππ;
π±ππππ πππππππππ ππ ππππππππππ
π»πππππππππ πππ πππππππππ’
πΈπππππ ππ πππππππππππ’ /πππππ£ππππππ
π³πππππππ ππππππππππ
πΌππππππ ππ public πππππππ
π°ππππππππ ππ πππ ππππππππππππ
πππππππππ’ ππ πππ ππππππππππππ
ππππ ππ πππππππππ’ ππ πππ ππππππππππππ?
πΈπ ππ π ππππ πππ ππππππππππππ ππ πππππ ππ ππ πππ ππππ’ ππππππ πππ πππππ ππ πππ ππ ππππ’π.
π΄π‘πππππππππππππ ππ πππ ππππ’ππ ππππππππππππ
π°ππ πππππ πππππππ ππ πππ ππππππ πππππ ππππππππ’ ππππ πππ ππππππππππππ
π°ππ’ πππ ππππ πs ππππππππππππ π πππ πππ ππππππππππππ ππ ππππππ ππππ πππ πππππ ππ πππ ππ‘ππππ ππ πππ πππππππππππππ’.
πΈπ ππππππππ πππ πππππππππ πππππ ππ ππππππππππ πππ πππππ πππ ππππ.
π΄ππππππππππ πππ πππππππ ππππππ ππ ππππ’π ππ πππ πππππππππβπ ππππππ.
π°ππππππππ πππππππππ ππ πππππππ, ππππππππ π ππππππππππ
πΈπ ππππππππ πππ πππππππππ’.
πΏπππππππππ
πΈπ ππ πππππ ππππ ππ’ πππ ππππππππππππ ππ πππ ππππ πππππ ππππ ππππππ πππ π.
π»ππ π ππππ ππ ππππππππππ πππ πππππππππ ππ π ππππππππ ππππππ πππππππ.
π»ππππππππππ ππ πππ ππππππππππ.
πΈπ πππππππππ πππππ πππ ππππππ ππππ ππππ πππ
ππππ ππ π ππππ?
π° ππππ ππ π ππππππππ πππ /π πππππ πππ
ππ’πππ ππ πππππ
πΆπππππππππ bill- π ππππ ππππππ ππ ππππππππππ ππ’ ππππππππππ πππππππ ππππππππ’ ππππππ
πΏππππππ ππππππ'π ππππ- ππππ ππππππ ππ ππππππππππ ππ’ π πππππ£ππ ππ ππ ππππππππππ ππ πππππ πππππππ ππππππππ’
πΏπππππ ππππ- π ππlπ ππππ π πππ ππππππ πππ πππ ππππππ πππ πππππ ππ ππππ’π. πΆπππππππππ ππ πππππππ πππ πππππ ππ.
πΏππππππ ππππ_π ππππ ππππ π πππ ππππππ πππππππ πππππ ππ ππππ’π ππ π ππππππππ πππππ ππ ππππππ ππ ππππ’π.
πππππ πππ ππππππ ππ π ππππ
π³πππππππ ππ πππ ππππ
πππ ππππ ππ πππππππ ππ’ ππ ππ‘ππππ ππ πππ ππππππ ππ πππ ππππππππ’ πππππππ ππππππ ππππππππππ ππππ.
πΏππππππππππ ππ πππ ππππ
πππ ππππ ππ πππππππππ ππ πππ πππ£ππππ 14 πππ’π ππππππ πππππππing ππ ππππππππππ πππ ππππππ πππππππππππππ.
π΅ππππ πππππππ
πππππ ππ πππ ππππ ππ πππππ ππ πππππππ πππ ππππ’πππ πππππ ππππππ πππ ππππππππ ππππππππππππ.
ππππππ πππππππ
πππ ππππ ππ ππππ πππ πππ ππππππ ππππ πππ πππππππ ππ ππππππ ππ‘πππππ πππ πππππππ πππ ππππππππ. π° ππππ ππ πππππ πππ ππ ππππππππ’ πππππππ ππ ππππ ππ πππ πππππππππ πππππ.
π²ππππππππ πππππ
πππ πππππππππ πππππππ πππ ππππ ππ ππππππ πππ ππππππππ πππ πππππππππ’ πππππππ. π° ππππππ ππ ππππππππ πππ πππ πππππ.
πππππππππ πππππ
πππ ππππππ ππ πππππππππ ππ πππ πππππ πππ πππ πππππππ ππππππ πππ πππππππππππππππ πππ πππππ πππππ ππππ. πΈπ ππππππππ’ πππππππ ππ ππππ ππ πππ πππππ πππ πππππ πππππππ.
πππππ πππππππ
π»ππππππ ππππππ ππ πππ ππππ'π ππππππππππ. π° πππππ ππππ ππ πππππ πππ ππ ππππππππ’ πππππππ πππ ππππ ππ ππππππππππ ππππππ ππ’ ππππππππππ. π·ππ ππππ πππ ππ πππ ππππππππ ππ ππππππππππ ππ πππ πππ πππ ππππ ππ ππππ ππ πππ πππππππππ πππ ππππππππππππ ππππππ.
πΏπππππππππππ ππππππ
πππ ππππ ππ πππππππππ ππ πππ πππππππππ πππ πππ ππππππ ππ ππ πππππ ππ ππ πππππππ ππ πππ ππ ππππππππππ. πΈπ ππ πππππ'π: 1. πππ πππππππππ π πππππ ππ πππ πππππππ ππ πππ πππππ πππππππππ ππππ ππ πππ πππππ ππ πππ ππππ ππ ππ πππππππ.
2. πΏπππππππππ πππππ ππππππππππ πππ ππππ ππππππ ππππ πππππππ πππ πππππππππ ππππππππππππππ.
3. πΏπππππππππ πππ’ ππππππ: (π). πΈππππππππππ πππ πππππππππ πππππππππππππππ πππ ππππ πππ ππππ.
(ππ)ππππππ πππ ππππππππππ πππππππππππππππ πππ ππππ πππ ππππ ππ ππ ππ as ππππ ππ ππππ’ ππππ 2/3 ππ πππ ππππππππ’ πππππππ ππ ππππππππππ.
4. πΈπ ππππ ππππ πππππππππ ππππ ππππ πππ ππππ ππ ππ πππ π πππ ππ 21 πππ’π.
Advantages of Parliament as a Source of Law
Democratic Representation: Parliament is elected by the populace, which ensures that the laws reflect the will and needs of the citizens.
Legitimacy: Laws made by Parliament have a higher level of legitimacy as they undergo debates and discussions before approval.
Flexibility and Adaptability: Parliament can quickly amend or repeal existing laws in response to changing societal needs and values.
Comprehensive Law-Making: Parliament can create laws that cover a wide range of issues affecting society, including rights, responsibilities, and social order.
Checks and Balances: The legislative process involves multiple readings and stages, which helps to prevent hasty or unjust legislation.
Public Participation: Through public hearings and consultations, Parliament allows citizens to contribute to the legislative process, enhancing transparency and accountability.
Expert Input: Parliamentary committees can gather information and advice from experts and stakeholders to inform legislative decisions.
Disad
Disadvantages of Parliament as a Source of Law
Inefficiency: The legislative process can be slow and bureaucratic, leading to delays in addressing urgent issues.
Political Influence: Laws may be influenced by political agendas rather than the best interests of the public.
Complexity and Ambiguity: Legal language and procedures can be complex, making laws difficult for the average citizen to understand.
Limited Public Engagement: Not all citizens are able to participate in the legislative process, which may limit representation of diverse viewpoints.
Risk of Partisanship: Political divisions can hinder bipartisan cooperation, leading to a lack of compromise on important issues.
Potential for Overregulation: In an attempt to address every concern, Parliament may create excessive legislation that complicates compliance for citizens and businesses.
Subjectivity in Law-Making: The interpretation and implementation of laws can vary depending on the politicians involved, leading to inconsistency.
Statutory Interpretation: Statutory interpretation is the process by which courts analyze and construe the meaning of legislation to apply it to specific cases. here are several key principles and methods involved in statutory interpretation:
Literal Rule: This principle suggests that the words of the statute should be given their ordinary meaning. If the language is clear and unambiguous, it should be applied as written.
Golden Rule: If applying the literal rule results in an absurd outcome, courts can modify the meaning of the words to avoid such results.
Mischief Rule: This approach focuses on the purpose of the law, asking what the law was intended to πππππππ
Esjudicem Generis: This Latin legal maxim translates to "the judge of the class." It is used to indicate that when interpreting a statute or legal provision, the terms should be understood in the context of their general class or category. This helps avoid ambiguity and ensures that the interpretation aligns with the overall intent of the legislation.
Nos Sitor a Sociis: This term translates to "we sit by association" and is often used in the context of statutory interpretation. It suggests that words grouped together in a statute should be interpreted in light of each other. This provides clarity by ensuring that the interpretation of one word or phrase considers its relationship with others in the same context, thus supporting a more coherent understanding of the law as a whole.
π³ππππππππ πππππππππππ
π°s discussed earlier the main organ of making laws in Kenya is parliament, however the Parliament may delegate or share this power with other bodies and therefore we have indirect legislation / subordinate legislation /delegated legislation /subsidiary πππππππππππ.
πΉππππΈπ΅πΈπ²π°ππΈπΎπ½/ππ΄π°ππΎπ½ π΅πΎπ πΏπ°ππ»πΈπ°πΌπ΄π½π π³π΄π»π΄πΆπ°ππΈπΎπ½
Parliament is not always in session and therefore we need to pass urgent laws, subsidiary bodies will take over.
To save time. Delegation ives parliament time to perform one of their main duties is oversight role.
Flexibility. Passing laws in parliament os very long and rigid but delegated legislation is responsive and flexible
Parliament is not an expert in law making it however is a body of representation we therefore need to have bodies with expertees. Eg kasneb ispak engineering board commission.
It increases social legislation. It allows other public bodies to be involved in law making.
Types of delegated legislation
Bylaws.
Laws made by statutory cooperations.
Ministerial declarations
Direction given by the ministers eg minister of transport restricts night traveling.
Rules of professional association
Rules made by the professional bodies eg ispak.
Because parliament is the one responsible for making laws, they need to ensure that the subsidiary bodies don't abuse their power.
Mechanisms to control subsidiary legislation
Judicial review Court have the power to reverse delegated legislation if exceeds power granted by parent act.
Affirmative resolution procedure Delegation requires approval from parliament before becoming a law.
Negative resolution procedure Delegated resolution becomes a law automatically unless parliament objects.
Scrutiny committees Parliamentary committees may review delegated legislation to ensure it complies with parent act andβ¦
Consultation requirement
Sunset clause