PREBAR 2021

a) Explain the concept of independence of the judiciary and outline five (5) pillars that underpin
that concept. (15 marks) b) Discuss the concept of “constitutionalism” as understood in legal
scholarship. (10 marks)

(a) The Concept of Independence of the Judiciary (15 marks)

Independence of the judiciary refers to the principle that the judiciary must be free from
external pressures and influences in order to make impartial decisions based on law and facts.
This concept ensures that judges are not subject to control or influence from the legislative or
executive branches of government, political pressures, or private interests. The primary goal is to
protect the rule of law and the rights of individuals by ensuring fair and impartial adjudication.

Five Pillars that Underpin Judicial Independence:

1. Security of Tenure: Judges should hold their positions for a prescribed period, usually
until retirement, without arbitrary dismissal. Security of tenure ensures that judges can
make decisions without fear of losing their jobs for ruling against the government or
other powerful actors.
2. Financial Independence: The remuneration of judges must be sufficient and cannot be
arbitrarily reduced by the executive or legislature. This ensures that judges are not
swayed by financial concerns or external pressure to rule in favor of certain parties.
3. Institutional Independence: The judiciary must have institutional autonomy over its
internal administration, including the appointment of support staff, allocation of
resources, and organization of its work. This autonomy ensures that the judiciary is free
from external control.
4. Appointment and Removal Procedures: Judges should be appointed through a
transparent, merit-based process, often involving judicial service commissions or other
independent bodies. Their removal should also follow strict legal and procedural
safeguards, ensuring that judges cannot be dismissed without legitimate cause.
5. Freedom from External Influence: Judges should make decisions based solely on the
law, facts, and evidence presented, without interference from external actors, such as
politicians, private individuals, or interest groups. Judicial decision-making must be
independent to maintain public confidence in the legal system.

(b) The Concept of Constitutionalism (10 marks)

Constitutionalism refers to the doctrine that government authority derives from and is limited
by a body of fundamental law, typically a constitution. It emphasizes that no government or ruler
is above the law, and that the exercise of governmental powers must be subject to legal
constraints. The concept is rooted in the belief that law, rather than arbitrary decision-making,
should govern the affairs of a state.
In legal scholarship, constitutionalism entails several key ideas:

1. Rule of Law: Government actions must conform to established laws, and no individual,
institution, or government is above the law. The rule of law is a central aspect of
constitutionalism, promoting equality, fairness, and accountability.
2. Limited Government: Constitutionalism emphasizes that governmental power should be
limited, with checks and balances in place to prevent abuse of power. Constitutions often
outline the division of powers between branches of government, ensuring that no single
entity can dominate.
3. Protection of Fundamental Rights: Constitutionalism seeks to safeguard fundamental
human rights and freedoms. Constitutions often enshrine civil liberties and ensure
mechanisms for their protection, preventing governments from infringing on individual
rights.
4. Separation of Powers: A core aspect of constitutionalism is the division of government
into separate branches (executive, legislature, and judiciary) to prevent the concentration
of power and promote accountability. Each branch serves as a check on the others,
maintaining balance within the system.
5. Judicial Review: Constitutionalism allows for the judiciary to interpret the constitution
and review the constitutionality of laws or government actions. Judicial review serves as
a mechanism for enforcing constitutional principles and protecting the rule of law.

In sum, constitutionalism ensures that governmental power is exercised within the framework of
law and respects fundamental rights, thereby upholding democratic values and legal
accountability.

a) Discuss five (5) advantages of legislation as compared to judicial precedent. (15 Marks) b)
Explain the legal mechanisms available for legislative and judicial control of delegated
legislation. (10 Marks)

(a) Five Advantages of Legislation Compared to Judicial Precedent (15 marks)

1. Clarity and Precision: Legislation is generally drafted in a clear and precise manner, making
it easier for individuals to understand their rights and obligations. Unlike judicial precedents,
which can be complex and fragmented, statutes provide a more straightforward statement of the
law.

2. Prospective Nature: Legislation is typically forward-looking, applying to future events, while

judicial precedent often applies retrospectively to cases that have already occurred. This
prospective approach gives people and businesses greater certainty in planning their actions
based on the law.

3. Democratic Legitimacy: Legislation is created by elected representatives in a democratic

process, giving it legitimacy. Judicial precedent, on the other hand, is developed by unelected
judges, which may not always reflect the will of the public or democratic principles.
4. Ability to Address New Issues: Legislatures can proactively address new or emerging issues
in society by enacting laws specifically tailored to those needs. In contrast, judicial precedent is
reactive, depending on cases being brought before the courts, which may delay the development
of legal solutions to novel problems.

5. Flexibility and Ease of Amendment: Legislation can be amended, repealed, or updated more
easily than judicial precedents, allowing for more rapid responses to societal changes or
corrections to outdated laws. Judicial precedents, once established, are harder to overturn unless
reviewed by higher courts, such as appellate or supreme courts.

(b) Legal Mechanisms for Legislative and Judicial Control of Delegated

Legislation (10 marks)

Delegated legislation refers to laws or regulations made by bodies other than the legislature,
typically under the authority of a parent Act of Parliament. Various controls exist to ensure that
delegated legislation remains within its legal limits and aligns with the public interest.

Legislative Control:

1. Enabling Act: The primary form of legislative control is through the enabling Act, which
grants the power to create delegated legislation. Parliament can impose limits on the
powers delegated, specifying the scope and conditions under which those powers can be
exercised.
2. Affirmative and Negative Resolution Procedures: Parliament exercises further control
through procedures that require certain types of delegated legislation to be approved by a
resolution (affirmative procedure) or annulled within a set period if not opposed (negative
procedure). This ensures oversight over specific regulations.
3. Scrutiny Committees: Parliamentary committees, such as the Committee on Delegated
Legislation or the Joint Committee on Statutory Instruments, review the content of
delegated legislation. These committees examine whether the regulations conform to the
powers granted by the parent Act and whether any legal or procedural errors exist.
4. Revocation Powers: Parliament retains the power to revoke or amend delegated
legislation through new legislation if it is deemed inappropriate, outdated, or contrary to
public policy.

Judicial Control:

1. Ultra Vires Doctrine: The judiciary controls delegated legislation by applying the ultra
vires (beyond powers) doctrine. Courts can declare delegated legislation invalid if it
exceeds the powers granted by the enabling Act. There are two types of ultra vires:
o Substantive ultra vires: Where the delegated legislation goes beyond the scope
of the parent Act.
o Procedural ultra vires: Where the delegated authority fails to follow the required
procedures when making the legislation.
 2. Judicial Review: Courts have the power to review the legality, rationality, and
procedural fairness of delegated legislation. This review ensures that the delegated
authority acted within the law, followed the correct procedures, and made decisions based
on reasonable grounds.
3. Human Rights Compliance: Judicial control also includes ensuring that delegated
legislation complies with fundamental rights and freedoms. If delegated legislation
violates constitutional provisions or international human rights standards, courts can
strike it down.

Both legislative and judicial mechanisms provide essential checks and balances to prevent the
misuse of delegated legislative powers and to ensure that it adheres to the rule of law.

a) Outline the salient characteristics of the common law legal system. (10 Marks) b) Discuss five
(5) statutory aids in interpretation of legislation. (15 Marks)

(a) Salient Characteristics of the Common Law Legal System (10 marks)

1. Judicial Precedent (Stare Decisis): A fundamental feature of the common law system is the
doctrine of judicial precedent, where decisions made in higher courts are binding on lower
courts. This ensures consistency and predictability in the law. Courts rely on past judgments to
guide their rulings in similar cases.

2. Case Law Development: Common law is largely developed through case law, which is built
upon judicial decisions over time. Unlike civil law systems, where laws are codified, common
law evolves through the resolution of individual cases, and judges play a central role in shaping
the law.

3. Adversarial System: The common law system operates on an adversarial process, where
parties present their cases before an impartial judge or jury. The judge acts as a neutral arbiter,
ensuring fair procedures while the parties are responsible for presenting evidence and legal
arguments.

4. Role of Judges: In the common law system, judges are active law-makers in the sense that
they interpret and sometimes create legal principles through their decisions. Their role is not
limited to applying statutes but also involves developing legal rules through judicial reasoning.

5. Unwritten Constitution: Many common law countries, such as the UK, operate under an
uncodified or unwritten constitution. Constitutional principles are derived from statutes, judicial
decisions, and conventions, providing flexibility in governance.

6. Flexibility and Adaptability: Common law is flexible and adaptable as it develops gradually
through case law. This allows the legal system to respond to new challenges and societal changes
over time without requiring formal legislative changes.

7. Importance of Equity: Common law incorporates principles of equity, which developed to

address the rigidity and inadequacies of common law rules. Equity ensures fairness in the legal
system by supplementing common law with remedies such as injunctions and specific
performance.

8. Influence of Statutory Law: While case law is a significant source of law in common law
systems, statutes also play an important role. Courts interpret and apply statutes in conjunction
with common law principles, blending legislative and judicial authority.

9. Hierarchical Court Structure: The common law system has a hierarchical court structure,
where higher courts (such as appellate or supreme courts) have the authority to overrule
decisions made by lower courts. This structure enforces the principle of precedent.

10. Jury System: In many common law countries, the use of juries in both criminal and civil
trials is a distinguishing feature. Juries are made up of ordinary citizens who determine the facts
of the case, while the judge provides legal guidance.

(b) Five Statutory Aids in Interpretation of Legislation (15 marks)

Statutory aids are tools found within legislation itself that assist courts in interpreting the
meaning and scope of statutory provisions. Here are five key statutory aids used in legal
interpretation:

1. Long Title and Short Title:

 The long title of an Act explains the purpose and objectives of the statute, providing
guidance on the context and scope of the law. It can clarify the legislative intent and help
resolve ambiguities in interpretation.
 The short title is a simpler name by which the Act is referred to, and while it is less useful
for interpretation, it helps identify the statute.

2. Preamble:

 The preamble provides an introductory statement at the beginning of a statute, outlining

its objectives and underlying principles. It can be a useful tool for interpreting ambiguous
provisions by offering insight into the law’s purpose.
 However, modern statutes often lack preambles, making this aid less common in
contemporary legislation.

3. Definition Sections:

 Many statutes include a definition section, which defines specific terms used within the
Act. These definitions ensure consistent usage and interpretation of terms across the
statute, preventing confusion or multiple interpretations.
 Courts rely on these definitions to interpret the precise meaning of terms as intended by
the legislature.
4. Schedules:

 Schedules are supplementary parts of a statute, often placed at the end, containing
detailed rules, lists, or examples relevant to the statute’s provisions. Schedules are
considered part of the statute and can provide specific guidance on how particular
provisions are to be applied.
 For example, a schedule may list the types of activities covered by a licensing law.

5. Marginal Notes and Headings:

 Marginal notes (annotations in the margins of statutes) and headings (section titles) can
provide context or indicate the general subject matter of the statutory provisions.
Although not part of the statute's formal text, they offer clues to the legislature’s intent
and can assist judges in understanding the structure and content of the law.
 Courts are cautious in using marginal notes and headings for interpretation, as they are
often added by drafters rather than legislators, but they can be used as a reference point
when the text is unclear.

These statutory aids help ensure that legislation is interpreted in a manner consistent with its
intended purpose, providing clarity and consistency in legal decision-making.

a) Explain five (5) shortcomings of the common law that necessitated the advent of equity. (15
marks) b) Assess the relevance of African Customary Law as a source of law in Kenya today in
light of the conditions for its applicability as set out under section 3(2) of the Judicature Act
(Cap. 8, Laws of Kenya). (10 marks)

(a) Five Shortcomings of the Common Law that Necessitated the Advent of
Equity (15 marks)

1. Rigidity of Common Law: The common law developed a set of fixed legal rules and
procedures, which often led to injustices when applied strictly. Once a rule was established
through judicial precedent, it was difficult to adapt it to the unique facts of individual cases. This
rigidity meant that individuals who had legitimate grievances could be left without a remedy if
their case did not fit neatly within established common law rules.

2. Limited Remedies: The remedies available under common law were mainly limited to
damages, which involved monetary compensation. This was insufficient in cases where specific
performance, injunctions, or other equitable remedies were more appropriate. For example, in
property disputes, a simple monetary award might not be sufficient, and a more tailored remedy
like an injunction or specific performance would be necessary.
3. Formalism in Legal Procedure: Common law was characterized by formalism in its
procedures, making access to justice difficult for many people. If parties failed to follow the
exact legal procedures, they could lose their case regardless of the merits. Equity emerged to
offer relief from these rigid procedural requirements, providing more flexibility in ensuring
justice.

4. Inflexibility in Recognizing New Rights: The common law was slow in recognizing new
forms of rights and interests, particularly in matters of trusts, property, and family law. Equity
was able to adapt to societal changes more quickly, recognizing new categories of rights, such as
the rights of beneficiaries under a trust, which were not recognized under the common law.

5. Harshness and Injustice: The application of common law principles could result in harsh and
unjust outcomes, especially where strict legal rights were enforced without considering fairness
or moral obligations. For instance, if someone was holding property for the benefit of another but
was not the legal owner, the common law would ignore the moral obligation to transfer the
property to its rightful owner. Equity intervened in such cases to mitigate these harsh outcomes
by considering fairness and justice.

These shortcomings led to the development of equity, a system of law that worked alongside
common law to provide more flexible, fair, and just remedies. Equity introduced principles like
fairness, good conscience, and justice, and provided remedies such as injunctions, specific
performance, rescission, and rectification that were not available at common law.

(b) The Relevance of African Customary Law as a Source of Law in Kenya

Today (10 marks)

African customary law remains a significant source of law in Kenya, particularly in areas where
statutory law or common law does not provide adequate guidance, especially in matters relating
to personal status, marriage, divorce, inheritance, and land tenure. However, its application is
governed by specific conditions set out under Section 3(2) of the Judicature Act (Cap. 8, Laws
of Kenya), which limit its relevance and application in modern legal practice.

Conditions for Applicability of African Customary Law:

1. Consistency with Written Law: African customary law is only applicable to the extent
that it is not inconsistent with any written law. This means that where statutory or
constitutional law provides a different rule, customary law cannot override it. For
instance, if a customary practice violates provisions in the Kenyan Constitution (such as
the protection of human rights), it will not be applicable.Art. 2[4] C.O.K 2010
2. Not Repugnant to Justice and Morality: Customary law must not be applied if it is
repugnant to justice and morality. This condition ensures that certain harmful customary
practices, such as female genital mutilation or discriminatory inheritance rules, are not
enforced. Courts have the power to strike down any customary law that offends principles
of justice or public morality. Art. 159[3][b] C.O.K 2010
 3. One or more of the parties is subject to it or affected by it.

Assessment of Relevance Today:

Despite the constitutional and statutory limitations, African customary law continues to play a
vital role in Kenya's legal system, especially in rural areas and in matters of personal law.
Customary law provides a link between the formal legal system and the cultural values of
different Kenyan communities. It allows for legal processes that reflect the social, cultural, and
moral values of particular communities.

Giving specific examples, discuss five (5) ways of classifying constitutions. (25 Marks)

Constitutions can be classified in various ways depending on their characteristics, structure, and
functions. Below are five major ways of classifying constitutions, each with specific examples:

1. Written vs. Unwritten Constitutions

 Written Constitution: This is a constitution that is formally documented in a single

written document. It clearly defines the structure of government, the distribution of
powers, and the rights of citizens. Written constitutions are more rigid and precise.
o Example: The United States Constitution (1787) is one of the oldest written
constitutions, setting out the structure of government and the Bill of Rights in a
single document.
 Unwritten Constitution: An unwritten constitution is not contained in a single, codified
document. Instead, it consists of statutes, common law, judicial decisions, and
conventions.
o Example: The United Kingdom's Constitution is an unwritten constitution
composed of statutes like the Magna Carta (1215), judicial decisions, and
conventions developed over centuries.

2. Rigid vs. Flexible Constitutions

 Rigid Constitution: A rigid constitution is difficult to amend or change, often requiring

special procedures, such as supermajorities in parliament or approval through a
referendum.
o Example: The United States Constitution is rigid because amendments require a
two-thirds majority in both houses of Congress and ratification by three-fourths of
the states.
 Flexible Constitution: A flexible constitution can be amended through the ordinary
legislative process, without requiring special procedures. This makes it easier to change
and adapt to new circumstances.
o Example: The United Kingdom's Constitution is flexible, as Parliament can
amend constitutional statutes by a simple majority, as was done with the Fixed-
term Parliaments Act (2011).

3. Monarchical vs. Republican Constitutions

  Monarchical Constitution: In a monarchical constitution, the head of state is a monarch,
either with ceremonial powers or significant governing authority. The monarchy can be
constitutional or absolute.
o Example: The Constitution of Japan (1947) is a monarchical constitution, with
the Emperor serving as a symbolic head of state under the constraints of a
parliamentary system.
 Republican Constitution: A republican constitution establishes a republic, where the
head of state is an elected official, usually a president. The presidency is often time-
limited and subject to democratic control.
o Example: The Constitution of India (1950) is a republican constitution, with the
President serving as the ceremonial head of state and executive power vested in
an elected government.

4. Federal vs. Unitary Constitutions

 Federal Constitution: A federal constitution divides powers between a central

government and regional governments (states, provinces, or territories), with each level
of government having constitutionally defined powers.
o Example: The Constitution of the United States is federal, with powers divided
between the federal government and the individual states, each having its own
constitution and government.
 Unitary Constitution: A unitary constitution concentrates all sovereign power in a
single, central government. Any regional or local governments operate at the discretion of
the central government and do not have constitutionally guaranteed autonomy.
o Example: The Constitution of France (1958) is unitary, with significant power
concentrated in the central government, although there are regions and local
authorities whose powers are delegated by the national government.

5. Presidential vs. Parliamentary Constitutions

 Presidential Constitution: In a presidential constitution, the head of state (president) is

also the head of government and is elected separately from the legislature. The president
typically has fixed terms in office and significant executive powers.
o Example: The Constitution of Brazil (1988) establishes a presidential system,
where the President is both the head of state and government, elected by popular
vote and separate from the legislative branch.
 Parliamentary Constitution: In a parliamentary constitution, the head of government
(prime minister) is drawn from the legislature and is accountable to it. The head of state
may be a ceremonial figure, such as a monarch or president.
o Example: The Constitution of the United Kingdom establishes a parliamentary
system, where the Prime Minister is the head of government and is accountable to
Parliament, while the monarch is the ceremonial head of state.
PREBAR JAN 2024

(a) Five Possible Meanings of the Expression "Sources of Law" (15 marks)

The expression "sources of law" can refer to different meanings based on the context in which it
is used. Below are five possible interpretations:

1. Historical Sources: This refers to the historical origins of legal principles and ideas that have
shaped modern legal systems. Historical sources highlight how law has evolved from ancient
practices, customs, and traditions over time. For example, Roman law, religious laws, and
English common law are historical sources that have influenced contemporary legal systems.

2. Material Sources: Material sources refer to the underlying factors, such as social, economic,
political, or cultural influences, that shape the creation of laws. These are the raw materials from
which law is developed, reflecting the needs and values of society at a given time. For instance,
economic inequality may lead to labor laws aimed at promoting fairness in the workplace.

3. Formal Sources: Formal sources are the legal authorities that provide the legitimacy and
binding nature of law. These include constitutions, statutes, judicial precedents, and regulations.
Formal sources are the recognized legal documents or processes through which law is officially
established and enforced.

4. Authoritative Sources: This refers to the bodies or institutions that are legally empowered to
create, interpret, and enforce laws. In most jurisdictions, authoritative sources include the
legislature (which enacts laws), the judiciary (which interprets laws), and the executive (which
enforces laws). For example, in Kenya, the Parliament and courts are key authoritative sources of
law.

5. Legal Sources: Legal sources of law refer to the recognized origins of legal rules that courts
and legal professionals use when making decisions. These include primary legal documents like
statutes, constitutions, case law (judicial precedent), and treaties. Legal sources form the
foundation of legal authority in the practice of law.

(b) Five Written Sources of Law in Kenya (15 marks)

Kenya's legal system is primarily based on written laws, which are formal documents that
provide binding legal rules. Below are five key written sources of law in Kenya:

1. The Constitution of Kenya (2010): The Constitution is the supreme law of the land, and any
law or act inconsistent with it is void to the extent of the inconsistency. It outlines the structure
of government, the rights and freedoms of individuals, and the duties of public authorities. The
Constitution provides the foundation for all other laws and governs how they are applied.
  Example: Article 2(4) of the Constitution asserts the supremacy of the Constitution over
any other laws.

2. Acts of Parliament (Statutes): These are laws passed by the Kenyan Parliament. Acts of
Parliament can cover a wide range of subjects, including criminal law, civil law, commercial
law, and family law. Statutes are binding on all individuals and institutions within Kenya.

 Example: The Penal Code (Cap 63), which sets out the criminal laws of Kenya, is an
Act of Parliament.

3. Subsidiary/Delegated Legislation: These are laws made by bodies or persons to whom

Parliament has delegated legislative authority. Delegated legislation typically includes
regulations, rules, orders, and by-laws. This form of legislation allows more specialized bodies to
develop detailed laws to govern specific areas.

 Example: Traffic Rules under the Traffic Act (Cap 403) are examples of delegated
legislation that provide rules for road users.

4. International Treaties and Conventions: International treaties and conventions that Kenya
has ratified are a source of law in Kenya, provided they are consistent with the Constitution. The
Constitution of Kenya recognizes the application of international law in the domestic legal
system.

 Example: Kenya is a party to the United Nations Convention on the Rights of the
Child (UNCRC), which influences national child protection laws.

5. Judicial Precedent (Case Law): Judicial precedent refers to the use of past judicial decisions
as a source of law, particularly decisions of higher courts. In Kenya, the decisions of the
Supreme Court, Court of Appeal, and High Court are important precedents that lower courts
must follow. This creates consistency and predictability in the application of the law.

 Example: The Mwangi v. Mwangi case established a key precedent on the division of
matrimonial property in Kenya.

(c) Five Unwritten Sources of Law in Kenya (15 marks)

Unwritten sources of law refer to legal norms and principles that are not codified in formal
statutes or legal documents but are recognized and applied within the legal system. In Kenya,
several unwritten sources of law play a significant role in shaping legal decisions and societal
behavior. Here are five key unwritten sources of law in Kenya:

1. Judicial Precedent (Case Law): Judicial precedent, or stare decisis, refers to the practice of
courts following previous judicial decisions in similar cases. While judicial decisions are written,
the principles derived from these decisions are unwritten rules that guide future court rulings.
Higher court decisions bind lower courts, creating consistency and stability in the law.

 Example: In civil or criminal matters, lower courts in Kenya are bound to follow the
decisions of the Supreme Court and the Court of Appeal, unless there is a clear reason to
deviate.

2. African Customary Law: African customary law is an unwritten body of traditions, customs,
and norms that have been passed down through generations and are used to govern certain
aspects of life within specific ethnic communities. The Judicature Act (Cap. 8) recognizes
customary law as a source of law in Kenya, provided it is not repugnant to justice or morality, or
inconsistent with written law. Customary law is often applied in matters such as marriage,
divorce, succession, and land tenure among certain communities.

 Example: Customary law is used to settle inheritance disputes among members of

various ethnic groups, such as the Kikuyu or Luo communities, according to their
customs.

3. Common Law: Common law consists of unwritten legal principles developed through the
centuries, originating from English law, and adopted by Kenya during colonial times. Common
law principles still play a significant role in Kenya's legal system, particularly in areas not
covered by statutes. It encompasses areas like contracts, torts, and property law.

 Example: The common law doctrine of negligence is widely applied in tort cases in
Kenya, particularly in personal injury claims.

4. Islamic Law (Sharia Law): Islamic law, or Sharia law, is recognized as a source of unwritten
law in Kenya, particularly among the Muslim community. It applies mainly in personal matters,
such as marriage, divorce, inheritance, and succession, for Muslims. The Kadhi's Courts,
established under the Constitution, adjudicate disputes relating to Islamic law within this
framework.

 Example: Kadhi’s Courts apply Islamic law in settling inheritance disputes among
Muslims, based on Sharia principles, rather than codified statutes.

5. Principles of Equity: Equity refers to a body of unwritten principles that originated in

England to correct the rigid and sometimes unfair outcomes of the common law. In Kenya,
equitable principles are applied to ensure fairness and justice, especially when the strict
application of common law or statutory law would result in unjust outcomes. Equitable remedies,
such as injunctions, specific performance, and estoppel, are used by courts to provide just
outcomes in cases.

 Example: A Kenyan court may use the principle of estoppel to prevent a party from
acting inconsistently with a previous statement or action that another party relied upon,
even if it is not written in law.

(a) Meaning of the Expression "Legal System" (5 marks)

A legal system refers to the framework of rules, institutions, procedures, and processes that
govern the functioning of a state or society. It includes laws (statutory, customary, or case law),
legal institutions (such as courts, police, and prisons), legal actors (such as judges, lawyers, and
lawmakers), and the methods by which laws are enacted, interpreted, and enforced. The legal
system aims to maintain order, resolve disputes, protect individual rights, and regulate social,
economic, and political relations.

Key components of a legal system include:

 Sources of law (e.g., constitutions, statutes, judicial precedents, customary law).

 Courts and judicial systems that interpret and enforce the law.
 Legislatures that enact laws.
 Law enforcement agencies responsible for ensuring compliance with the law.

(b) Four Major Legal Systems in the World Today (12 marks)

There are several legal systems used by countries around the world. The most significant ones
are:

1. Common Law Legal System: The common law legal system originated in England and
spread to countries that were part of the British Empire, such as the United States, Canada,
Australia, and Kenya. Common law is characterized by the use of judicial precedents (court
decisions) to guide the application and development of law. In this system, past decisions of
higher courts bind lower courts, a principle known as stare decisis.

 Example: The legal system in Kenya is based on common law principles due to its
colonial history under British rule.
2. Civil Law Legal System: The civil law system, also known as the continental law system, is
based on written codes and statutes rather than judicial decisions. It originated in Europe,
particularly from Roman law, and is prevalent in countries such as France, Germany, Spain, and
many Latin American and African nations. In civil law systems, judges apply the law as written
in legal codes and statutes, with less emphasis on case law or judicial interpretation.

 Example: France follows a civil law system, where judges rely on the Napoleonic Code
and other statutory laws to decide cases.

3. Religious Law System: A religious law system is based on religious doctrines and principles.
The most well-known religious legal system is Sharia law, which is derived from Islamic
teachings. Religious law is often applied in personal matters such as marriage, divorce,
inheritance, and family relations, but in some countries, it can extend to criminal and civil
matters.

 Example: Saudi Arabia and Iran have legal systems primarily based on Sharia law,
which governs both personal and criminal matters.

4. Customary Law System: Customary law is based on long-standing traditions, customs, and
practices of a particular community or society. Customary law is often unwritten and passed
down orally. In many African countries, including Kenya, customary law plays an important role
in regulating personal matters such as marriage, inheritance, and land tenure within specific
ethnic communities. However, customary law is subordinate to statutory and constitutional law
in these countries.

 Example: In Kenya, African customary law governs certain family and land matters,
provided it is not inconsistent with the Constitution or statutory law, as recognized under
the Judicature Act.

(c) Distinction Between Adversarial and Inquisitorial Judicial Systems (8 marks)

The adversarial and inquisitorial systems are two different methods of conducting trials and
adjudicating disputes. They differ in their procedures, the role of the judge, and the parties
involved.

1. Adversarial Judicial System:

  Definition: In the adversarial system, the parties to a dispute (usually the plaintiff and the
defendant) present their cases before an impartial judge or jury. Each party is responsible
for gathering evidence, presenting witnesses, and making legal arguments. The judge acts
as a neutral referee, ensuring that the trial is conducted fairly and according to legal rules.
 Role of the Judge: The judge plays a passive role, mainly overseeing the proceedings
and making rulings on legal issues. The outcome is determined based on the strength of
each party’s evidence and arguments.
 Examples: The adversarial system is used in common law jurisdictions, such as the
United States, the United Kingdom, and Kenya.
 Advantages:
o Allows parties to fully control the presentation of their cases.
o Relies on a neutral judge to ensure fairness and impartiality.
 Disadvantages:
o Can be lengthy and expensive due to the emphasis on procedural fairness.
o May result in injustices if one party is significantly more resourced than the other.

2. Inquisitorial Judicial System:

 Definition: In the inquisitorial system, the judge plays an active role in investigating the
facts of the case. The judge gathers evidence, questions witnesses, and leads the inquiry
into the dispute, with the aim of uncovering the truth. The role of the parties is more
limited compared to the adversarial system.
 Role of the Judge: The judge is actively involved in fact-finding and leads the
investigation. The judge’s responsibility is to ensure that justice is served by uncovering
the truth, regardless of the arguments presented by the parties.
 Examples: The inquisitorial system is used in civil law jurisdictions, such as France,
Germany, and other European countries.
 Advantages:
o Can be faster and less costly, as the judge directs the investigation.
o Emphasizes the pursuit of truth rather than the skill of legal representation.
 Disadvantages:
o The judge’s active role may raise concerns about impartiality.
o Limited involvement of the parties may reduce the opportunity for vigorous
defense or prosecution.

Key Differences:

 Role of the Judge: In the adversarial system, the judge is a neutral arbiter, whereas in the
inquisitorial system, the judge actively investigates the facts.
 Control Over Evidence: In the adversarial system, the parties control the evidence
presented, while in the inquisitorial system, the judge controls the investigation and
collection of evidence.
  Outcome: In the adversarial system, the outcome is determined by the contest between
the parties, while in the inquisitorial system, the outcome is based on the judge's
investigation and findings

(a) Supremacy of the Constitution (5 Marks)

Supremacy of the Constitution is the principle that the Constitution is the highest law in a legal
system and takes precedence over all other laws and actions of government. It means that any
law, policy, or action that is inconsistent with the Constitution is null and void to the extent of
the inconsistency. This principle ensures that all branches of government (executive, legislature,
and judiciary) are subject to the Constitution and that citizens' rights are protected under its
provisions.

 Example: Article 2(4) of the Constitution of Kenya 2010 explicitly states that any law
or action that contradicts the Constitution is invalid. This affirms the Constitution's
supremacy over all other laws.

(b) Separation of Powers (5 Marks)

Separation of Powers is the doctrine that divides the functions and powers of government
among three distinct branches: the executive, the legislature, and the judiciary. Each branch
operates independently to prevent any one branch from exercising excessive power, ensuring
checks and balances. This principle promotes accountability, limits abuse of power, and
enhances democratic governance by preventing the concentration of power in a single entity.

 Example: In Kenya, the President heads the executive branch, Parliament (Senate and
National Assembly) exercises legislative power, and the Judiciary interprets and applies
the law. Each branch checks the others to maintain a balance of power.

(c) Rule of Law (5 Marks)

The Rule of Law is a foundational principle that dictates that all individuals, institutions, and
government entities are subject to and accountable under the law. It promotes equality before the
law, ensures that laws are fairly applied, and safeguards against arbitrary use of power. The rule
of law is essential for protecting fundamental rights, maintaining order, and ensuring justice in
society.

 Example: Under the Constitution of Kenya, Article 10 emphasizes the importance of

the rule of law as a national value and principle of governance. This ensures that both
citizens and the government are bound by law and can be held accountable.
(d) Democracy (5 Marks)

Democracy is a system of government in which power is vested in the people, who exercise it
either directly or through elected representatives. In a democracy, citizens have the right to
participate in decision-making processes, such as voting in elections, and to hold the government
accountable. Core principles of democracy include free and fair elections, protection of human
rights, and respect for the rule of law.

 Example: Kenya is a democratic republic, as stated in Article 1 of the Constitution,

where the people exercise their sovereign power through elected representatives, such as
the President and members of Parliament, and through direct participation in
referendums.

(e) Constitutionalism (5 Marks)

Constitutionalism is the practice and commitment to governance based on the principles and
limits set by a constitution. It emphasizes that government power must be exercised according to
the law and within the framework provided by the Constitution. Constitutionalism ensures that
governmental actions are subject to legal limitations, safeguards fundamental rights, and
promotes accountability, transparency, and respect for democratic principles.

 Example: In Kenya, constitutionalism is upheld through the separation of powers,

checks and balances, and the protection of individual rights as enshrined in the
Constitution. Courts have the power to declare laws or executive actions unconstitutional
if they violate constitutional provisions

(a) Five Advantages of Legislation as a Source of Law (5 Marks)

1. Certainty and Clarity: Legislation provides clear, written rules that are accessible to all,
reducing ambiguity and making it easier for people to understand their rights and
obligations.
o Example: The Kenya Penal Code (Cap. 63) clearly outlines criminal offenses
and their penalties.
2. Flexibility: Legislation can be amended or repealed by Parliament to adapt to changing
societal needs and circumstances.
o Example: Amendments to the Employment Act to improve workers’ rights and
align with international labor standards.
3. Uniformity: Legislation applies uniformly across the country, ensuring consistent
application of the law in similar cases.
o Example: The Marriage Act (2014) governs all marriages in Kenya, regardless
of community or custom.
4. Comprehensive Coverage: Legislation can address broad and complex areas of law,
providing detailed rules for specific situations.
 o Example: The Constitution of Kenya 2010 provides a comprehensive legal
framework covering governance, rights, and obligations.
5. Democratic Legitimacy: Laws made through legislation reflect the will of the people, as
they are enacted by elected representatives in Parliament.
o Example: The enactment of the Public Health Act reflects the government's
response to public health concerns through representative legislation.

(b) Five Aids in Statutory Interpretation (10 Marks)

1. Preambles: A preamble provides the purpose or rationale behind the statute, helping
judges interpret the provisions in line with the intended objectives.
o Example: The preamble to the Constitution of Kenya 2010 outlines the
aspirations and values of Kenyans, which guides its interpretation.
2. Headings and Marginal Notes: Headings and marginal notes provide brief explanations
of sections and can help clarify ambiguous provisions.
o Example: Headings in the Penal Code help to categorize offenses and penalties,
aiding interpretation.
3. Schedules: Schedules provide additional details or lists of items relevant to the
provisions of the statute and can assist in clarifying the text of the main sections.
o Example: The Income Tax Act has schedules that list tax rates and allowable
deductions, clarifying how certain sections apply.
4. Definitions Section: Many statutes contain a section defining key terms used throughout
the statute, which helps resolve ambiguities in meaning.
o Example: The Interpretation and General Provisions Act (Cap. 2) defines
various legal terms, aiding in the interpretation of multiple statutes.
5. Explanatory Notes: Explanatory notes may be attached to a statute or legislative
document, providing insight into the context and purpose behind the law.
o Example: Explanatory notes attached to budget bills can clarify the policy intent
behind tax changes.

(c) Five Judge-Made Rules of Statutory Interpretation (10 Marks)

1. Literal Rule: Judges interpret statutes according to the plain, ordinary meaning of the
words, even if the outcome appears unjust or unreasonable.
o Case: In R v. City of London Court Judge (1892), the court applied the literal
meaning of a statute, stating that judges must apply the law as written, regardless
of its perceived fairness.
2. Golden Rule: If the literal interpretation leads to absurdity, judges may modify the
meaning to avoid an unreasonable outcome.
o Case: In R v. Allen (1872), the court used the golden rule to interpret the term
“marry” in a bigamy statute to mean “go through a marriage ceremony” to avoid
an absurd outcome.
 3. Mischief Rule: Judges look at the "mischief" or problem that the statute was intended to
remedy and interpret it to suppress the mischief and advance the remedy.
o Case: In Heydon’s Case (1584), the court established the mischief rule, stating
that judges must consider the problem the statute was designed to address.
4. Purposive Approach: Judges interpret statutes in light of their broader purpose and
objectives, often looking at legislative history or extrinsic materials to guide
interpretation.
o Case: In Smith v. Hughes (1960), the court interpreted the purpose of the Street
Offences Act to prevent soliciting, even though the accused were not technically
in the street.
5. Contextual Approach: Judges interpret statutes considering the context in which the
words are used, including the broader legal framework and social conditions.
o Case: In Pepper v. Hart (1993), the court allowed reference to parliamentary
debates (Hansard) to interpret ambiguous statutory provisions.

(d) Composition and Jurisdiction of Five Superior Courts in Kenya (20 Marks)

1. Supreme Court of Kenya:

o Composition: The Supreme Court consists of the Chief Justice, the Deputy
Chief Justice, and five other judges.
o Jurisdiction: It has exclusive original jurisdiction to hear disputes relating to
the election of the President, appellate jurisdiction over decisions from the Court
of Appeal, and advisory jurisdiction on constitutional matters upon request by
the government.
2. Court of Appeal:
o Composition: Composed of a number of judges as prescribed by Parliament,
headed by the President of the Court of Appeal.
o Jurisdiction: It has appellate jurisdiction to hear appeals from the High Court
and other subordinate courts on matters of law, including both criminal and civil
cases.
3. High Court:
o Composition: Composed of a Chief Judge and other judges appointed as needed.
o Jurisdiction: The High Court has unlimited original jurisdiction in civil and
criminal matters, as well as appellate jurisdiction over decisions from
subordinate courts. It also handles constitutional petitions, reviews the legality
of government actions, and deals with matters such as family law, land law, and
succession.
4. Employment and Labour Relations Court:
o Composition: Composed of a Principal Judge and other judges appointed to
handle employment and labor disputes.
o Jurisdiction: It has jurisdiction to hear disputes relating to employment, labor
relations, and workplace discrimination, as well as appeals from subordinate
courts or tribunals that deal with labor issues.
5. Environment and Land Court:
 o Composition: Composed of judges appointed to deal specifically with
environmental and land issues.
o Jurisdiction: This court has original jurisdiction to hear disputes relating to
land ownership, use, and environmental protection. It handles cases involving
land titles, boundary disputes, public land, private land, and land valuation

Constitutions can be classified in various ways based on their nature, structure, and the manner
in which they are made or operate. Below are five common ways of classifying constitutions,
along with Kenya's position in relation to each classification:

1. Written vs. Unwritten Constitutions

 Written Constitution: A written constitution is a formal document that outlines the

fundamental laws, principles, and structures of governance of a country. It is a single,
codified document that is considered the supreme law of the land.
o Example: The Constitution of Kenya 2010 is a written constitution. It is
codified, and all laws and government actions must conform to it.
 Unwritten Constitution: An unwritten constitution consists of various sources, including
statutes, conventions, and judicial precedents. It is not codified into a single document but
exists in multiple forms.
o Example: The United Kingdom has an unwritten constitution, which is derived
from statutes, conventions, and legal judgments.
 Kenya’s Position: Kenya has a written constitution, codified in the Constitution of
Kenya 2010, which outlines the structure of government, the rights of citizens, and the
principles of governance.

2. Rigid vs. Flexible Constitutions

 Rigid Constitution: A rigid constitution is one that can only be amended through a
special process, often requiring a supermajority or referendum. This ensures that changes
to the constitution are not easily made.
o Example: The U.S. Constitution is considered rigid because amendments require
approval by a supermajority of both houses of Congress and ratification by the
states.
 Flexible Constitution: A flexible constitution can be easily amended by ordinary
legislative processes, making it adaptable to changing circumstances.
o Example: The Constitution of the United Kingdom is flexible because it can be
changed by a simple majority in Parliament.
 Kenya’s Position: The Constitution of Kenya 2010 is a rigid constitution. Amendments
require special procedures, including parliamentary approval by a two-thirds majority in
 both houses or a referendum for certain provisions (such as changes affecting the Bill of
Rights or the structure of government).

3. Federal vs. Unitary Constitutions

 Federal Constitution: In a federal system, sovereignty is divided between a central

government and regional governments (such as states or provinces), each of which has
constitutionally guaranteed powers.
o Example: The United States operates under a federal constitution, where power
is shared between the federal government and individual states.
 Unitary Constitution: In a unitary system, all sovereign power is concentrated in the
central government, with regional authorities (if any) exercising powers delegated to
them by the central authority.
o Example: France has a unitary constitution, where the central government holds
most of the authority, and local governments have limited autonomy.
 Kenya’s Position: Kenya is a unitary state with a devolved system of government. The
Constitution of Kenya 2010 provides for devolution, giving substantial powers to the 47
county governments. However, ultimate sovereignty rests with the national government,
making Kenya fundamentally unitary with devolved elements.

4. Presidential vs. Parliamentary Constitutions

 Presidential Constitution: In a presidential system, the executive branch is headed by an

elected president, who is both the head of state and government. The president operates
independently from the legislature.
o Example: The United States has a presidential system where the president is
directly elected by the people and is independent of the legislative branch.
 Parliamentary Constitution: In a parliamentary system, the executive derives its
legitimacy from and is accountable to the legislature (parliament). The head of
government is typically a prime minister who is appointed based on parliamentary
majority.
o Example: The United Kingdom has a parliamentary system where the Prime
Minister leads the government and is accountable to Parliament.
 Kenya’s Position: Kenya operates under a presidential system. The President of
Kenya is both the head of state and head of government, elected by popular vote, and
exercises executive power independently of Parliament, though there are checks and
balances between the branches.

5. Republican vs. Monarchical Constitutions

  Republican Constitution: A republican constitution establishes a government in which
the head of state is an elected official, usually a president, and the country is governed by
elected representatives of the people. The office of the head of state is not hereditary.
o Example: The United States and Kenya are republics where the president is the
head of state and government, elected through a democratic process.
 Monarchical Constitution: A monarchical constitution establishes a government where
the head of state is a monarch, typically a hereditary ruler such as a king or queen. The
monarch’s powers may be largely ceremonial (constitutional monarchy) or significant
(absolute monarchy).
o Example: The United Kingdom is a constitutional monarchy, where the Queen
(or King) serves as a ceremonial head of state, while the government is run by
elected representatives.
 Kenya’s Position: Kenya is a republic, as established by the Constitution of Kenya
2010. The country is governed by elected officials, and the president serves as the head of
state and government through a democratic electoral process.

a) Discuss five (5) ways of classifying constitutions. kenyas position on each (20 marks) b) with
examples, Distinguish between ratio decidendi and obiter dicta. (5 Marks)

a) Five Ways of Classifying Constitutions and Kenya's Position on Each (20

marks)

1. Written vs. Unwritten Constitutions

o Written Constitutions are codified in a single formal document, while
unwritten constitutions are based on customs, judicial decisions, and various
legal texts.
o Kenya’s Position: Kenya has a written constitution, the current version being
the 2010 Constitution. It is a codified document that lays down the structure of
government, the rights of citizens, and how laws are made and applied.
2. Rigid vs. Flexible Constitutions
o Rigid constitutions require a special process, often more complex or stringent, to
amend. Flexible constitutions can be amended through ordinary legislative
processes.
o Kenya’s Position: The 2010 Constitution of Kenya is generally regarded as rigid,
as it requires special procedures for amendments. Articles 255-257 specify the
types of amendments that must be approved by a referendum, particularly those
affecting the structure of government or citizens' rights.
3. Federal vs. Unitary Constitutions
o A federal constitution divides powers between a central government and
regional governments, each with its own autonomy. A unitary constitution vests
all legislative power in a central authority, though it may delegate some powers to
local governments.
o Kenya’s Position: Kenya has a unitary constitution. Although Kenya has
devolved government under the 2010 Constitution, with counties having
significant autonomy, ultimate power resides with the central government.
4. Monarchical vs. Republican Constitutions
 o A monarchical constitution vests executive power in a monarch (king or queen),
often hereditary, while a republican constitution establishes an elected head of
state, typically a president.
o Kenya’s Position: Kenya has a republican constitution, as the head of state is
the President, who is elected through general elections every five years.
5. Presidential vs. Parliamentary Constitutions
o In a presidential system, the president is both the head of state and government,
elected independently of the legislature. In a parliamentary system, the head of
government (the Prime Minister) is drawn from the legislature, and the head of
state may be a ceremonial figure.
o Kenya’s Position: Kenya operates under a presidential constitution, where the
President is both the head of state and the government. The President is directly
elected by the people, independent of the legislature.

b) Distinguishing Ratio Decidendi and Obiter Dicta (5 Marks)

 Ratio Decidendi (Latin for "the reason for the decision") refers to the binding legal
principle or rule of law on which a judicial decision is based. It forms the precedent for
future cases with similar facts.
o Example: In the case of Donoghue v. Stevenson (1932), the ratio decidendi was
the establishment of the "neighbour principle," which laid the foundation for the
modern law of negligence.
 Obiter Dicta (Latin for "things said by the way") are incidental remarks or opinions
expressed by a judge that are not essential to the decision and therefore not binding as
precedent. However, they can be persuasive in later cases.
o Example: In the same Donoghue v. Stevenson case, the judge’s comments about
hypothetical situations concerning other forms of negligence were obiter dicta,
not essential to the ruling.

In summary, ratio decidendi forms the binding part of a judgment, while obiter dicta are
persuasive but not binding.

(a) In interpreting legislation, courts of law are guided by statutory aids, judge-made rules and
presumptions. Discuss four (4) examples of each. (20 Marks) (b) With refernce to aticle 1 of
kenyas constitution, what do you understand by the term "sovereignty" as applied in legal
studies? (5 marks)

a) Interpreting Legislation: Statutory Aids, Judge-Made Rules, and

Presumptions (20 Marks)

1. Statutory Aids (Internal Aids)

Statutory aids are found within the statute itself and help in clarifying the legislative intent. Some
examples include:
  Long Title: The formal title of an Act, which gives insight into the scope and purpose of
the legislation.
o Example: The long title of Kenya's Constitution of 2010 states that it aims to
provide for the sovereignty of the people, the supremacy of the Constitution, and
the rule of law.
 Preamble: A statement at the beginning of an Act that outlines the general objectives of
the law.
o Example: The preamble of Kenya's Public Health Act provides guidance on the
law’s objectives to prevent and control public health risks.
 Schedules: Additional provisions that offer specific details, explanations, or forms
related to the Act.
o Example: In Kenya's Constitution of 2010, the schedules outline key matters
such as the distribution of functions between the national and county
governments.
 Definitions/Interpretation Clauses: Sections of an Act that define terms used in the
statute, ensuring consistent interpretation.
o Example: In Kenya's Penal Code, Section 4 defines important legal terms such as
"person" and "property," providing clarity for legal interpretation.

2. Judge-Made Rules (Rules of Interpretation)

These are principles developed by the courts over time to guide judges in interpreting statutes.
Some examples include:

 Literal Rule: Under this rule, courts give the words of a statute their plain, ordinary
meaning, without deviating from the text.
o Example: In the case of R v City of London Court Judge (1892), the court held
that if the words of an Act are clear, they must be followed even if they lead to an
undesirable outcome.
 Golden Rule: This rule modifies the literal rule to avoid absurd or unreasonable
outcomes.
o Example: In Adler v George (1964), the court applied the golden rule to avoid
the absurdity that a person within a prohibited area could not be guilty of
obstructing Her Majesty's forces, despite the literal wording of the statute.
 Mischief Rule: This rule allows the court to interpret a statute in a way that addresses the
“mischief” or defect that the statute was intended to remedy.
o Example: In Heydon’s Case (1584), the court developed this rule to examine the
common law before the statute, the mischief the law did not address, and the
remedy provided by Parliament.
 Purposive Approach: This rule directs the court to look beyond the literal meaning of
the words to consider the purpose or intent of the legislature.
o Example: In Pepper v Hart (1993), the court held that Hansard (the official
report of Parliamentary debates) could be referred to in order to ascertain the
purpose of ambiguous legislation.
3. Presumptions in Interpretation

Presumptions are assumptions courts make about the law unless expressly rebutted by the statute.
Some examples include:

 Presumption Against Retrospective Operation: Laws are presumed not to apply to

events that occurred before the law was enacted unless the statute explicitly states
otherwise.
o Example: In Re Athlumney (1898), it was held that retrospective operation of
laws should only be applied when the statute clearly indicates that intention.
 Presumption Against Ousting Jurisdiction of Courts: Courts assume that laws do not
intend to restrict judicial oversight unless stated clearly.
o Example: In Anisminic Ltd v Foreign Compensation Commission (1969), the
court held that a statute could not oust judicial review without clear words.
 Presumption Against Implied Repeal: Courts presume that a new law does not repeal
an earlier one unless the two are in direct conflict.
o Example: In Vauxhall Estates Ltd v Liverpool Corporation (1932), the court
held that a later statute did not implicitly repeal an earlier statute unless it was in
direct contradiction.
 Presumption of Conformity with International Law: Courts presume that Parliament
does not intend to legislate contrary to international obligations unless explicitly stated.
o Example: In R v Lyons (2002), the court interpreted domestic law in light of the
UK’s obligations under international treaties.

b) Understanding Sovereignty under Article 1 of Kenya’s Constitution (5 Marks)

Sovereignty, as applied in legal studies, refers to the ultimate authority and power of a state to
govern itself without interference from external bodies. Article 1 of Kenya's Constitution (2010)
declares that sovereignty belongs to the people of Kenya. This means that the people are the
ultimate source of authority, and all state power must derive from and be exercised in accordance
with their will.

Key aspects of sovereignty in Kenya include:

1. Supremacy of the People: Sovereignty resides with the citizens, and they delegate
authority to the institutions of government through democratic processes.
2. Exercising Sovereignty: The people exercise their sovereignty directly (e.g., through
referendums) or indirectly through elected representatives (e.g., members of Parliament,
the President, etc.).
3. Limitation of State Power: All arms of government (executive, legislative, and
judiciary) are subject to the Constitution, which expresses the will of the people.

In summary, sovereignty in Kenya emphasizes that all state power and governance must conform
to the democratic will of its people, who hold the ultimate authority under the law.
Explain the meaning of the following concepts in the context of constitutional theory: a)
Supremacy of the constitution. (5 marks) b) Separation of powers. (5 Marks) c) Rule of law. (5
Marks) d) Democracy. (5 Marks) e) Constitutionalism. (5 Marks)

a) Supremacy of the Constitution (5 Marks)

Supremacy of the Constitution refers to the principle that the Constitution is the highest law of
the land, and all other laws, policies, and actions of governmental institutions must conform to it.
It asserts that no individual or institution, including the executive, legislature, and judiciary, can
override the Constitution. In countries like Kenya, this is explicitly stated in the Constitution
itself (Article 2 of the Constitution of Kenya, 2010). The principle ensures that the powers of
government are limited and that all actions taken by state organs are subject to constitutional
review.

Key aspects of this principle include:

 Binding Nature: All laws, both at the national and county level, must conform to the
Constitution.
 Judicial Review: Courts have the power to invalidate laws or actions that contravene the
Constitution.
 Protection of Rights: The Constitution is the ultimate protector of individual rights,
ensuring that no law or governmental action infringes on them.

b) Separation of Powers (5 Marks)

Separation of powers is the doctrine that divides the functions and powers of government into
three separate and independent branches: the executive, the legislature, and the judiciary. The
purpose of this division is to prevent the concentration of power in one branch and to provide a
system of checks and balances, where each branch can limit or regulate the powers of the others.

Key aspects include:

 Executive: The branch that implements and enforces laws (e.g., President, Cabinet in
Kenya).
 Legislature: The branch that makes laws (e.g., Parliament in Kenya).
 Judiciary: The branch that interprets laws and ensures they comply with the Constitution
(e.g., the courts in Kenya).

In Kenya, this principle is enshrined in the Constitution to ensure that no branch oversteps its
authority and that governmental power is balanced.

c) Rule of Law (5 Marks)

Rule of Law is the principle that all individuals, institutions, and the government itself are
subject to and accountable under the law. It ensures that laws are applied equally, fairly, and
consistently to all citizens, and that no one is above the law, including lawmakers and
government officials.

Key features of the rule of law include:

 Equality before the Law: Every person, regardless of status, is subject to the same legal
rules.
 Legal Certainty: Laws must be clear, publicized, and stable, ensuring that individuals
can understand and comply with them.
 Judicial Independence: Courts must be independent of political influence to fairly
enforce the law.

In Kenya, the rule of law is a fundamental principle enshrined in the Constitution (e.g., Article
10), emphasizing fairness, justice, and equality.

d) Democracy (5 Marks)

Democracy refers to a system of government in which power is vested in the people, who
exercise it directly or through elected representatives. Democracy is characterized by free and
fair elections, the protection of fundamental rights, and the active participation of citizens in
political decision-making processes. In a democracy, government authority derives from the
consent of the governed.

Key elements of democracy include:

 Popular Sovereignty: The people are the ultimate source of authority, as reflected in
Article 1 of the Constitution of Kenya.
 Political Participation: Citizens have the right to participate in the electoral process,
hold public office, and engage in political debates.
 Accountability and Transparency: Elected officials are accountable to the people and
must govern according to the will of the electorate.

Kenya operates as a representative democracy, where citizens elect their leaders and
lawmakers to represent their interests in government.

e) Constitutionalism (5 Marks)

Constitutionalism is the theory or principle that government authority is derived from and
limited by a body of fundamental law – the Constitution. It implies that government officials and
institutions must act within the boundaries of the Constitution and respect the rights and
freedoms it guarantees. Constitutionalism emphasizes the limitation of government power and
the protection of individual rights.

Key features of constitutionalism include:

  Limited Government: Government powers are clearly defined and restricted by the
Constitution.
 Protection of Rights: The Constitution serves as a safeguard for individual rights and
freedoms against arbitrary government action.
 Checks and Balances: Mechanisms are in place to ensure that no branch of government
becomes too powerful or abuses its authority.

In Kenya, constitutionalism is embodied in the Constitution of 2010, which sets out the
structure and limits of government and guarantees fundamental rights and freedoms.

These concepts collectively form the backbone of constitutional theory, ensuring that governance
is grounded in law, democracy, and accountability.

a) Outlining the salient features of each, distinguish between the common law legal system and
the civil law legal system. (10 marks) b) Discuss five (5) ways through which a judicial
precedent may lose its binding force. (15 Marks)

a) Distinguishing Between the Common Law and Civil Law Legal Systems (10
Marks)

The Common Law and Civil Law systems are the two main legal traditions in the world, and
they differ significantly in their features and methods of operation. Below are the salient features
of each:

1. Common Law Legal System

 Origin: The common law system originated in England and is used in countries like the
United States, Canada, Australia, and Kenya (as a former British colony).
 Sources of Law: The key sources of law in the common law system are judicial
precedents (case law) and statutes. The principle of stare decisis ensures that decisions
made by higher courts are binding on lower courts.
 Role of Judges: Judges in common law systems have a significant role in developing the
law through their decisions. They interpret statutes and create case law, meaning that law
evolves through judicial decisions.
 Legal Procedure: The common law system uses an adversarial system of justice, where
two opposing parties present their case before an impartial judge or jury. The judge
ensures the rules of procedure are followed but does not actively investigate the case.
 Legal Interpretation: Judges rely heavily on precedent. When interpreting the law, they
often follow previous decisions unless there is a strong reason to deviate.
 Application: Countries using common law include Kenya, the United Kingdom, the
United States, and other countries of the former British Empire.

2. Civil Law Legal System

  Origin: The civil law system originated in Roman law and is primarily used in countries
like France, Germany, Italy, Spain, and most of Latin America.
 Sources of Law: The primary source of law in civil law systems is written statutes or
codes (e.g., the French Civil Code or German Civil Code). Judicial decisions (case law)
play a minor role and are not considered binding.
 Role of Judges: In civil law systems, judges have a more passive role in developing the
law. They focus on applying and interpreting written statutes, and they are not generally
involved in making new law through judicial decisions.
 Legal Procedure: Civil law systems tend to use an inquisitorial system, where the judge
plays an active role in investigating the facts of the case. The judge is involved in
gathering evidence and questioning witnesses.
 Legal Interpretation: Judges in civil law systems focus on applying the law as written.
Precedents do not have the same binding effect as in common law jurisdictions.
 Application: Civil law is followed in countries like France, Germany, Japan, and many
other parts of Europe and Latin America.

Comparison Summary

 Role of Judges: In common law, judges create law through precedent; in civil law,
judges apply and interpret codified statutes.
 Sources of Law: Common law relies on judicial precedents and statutes, while civil law
relies primarily on comprehensive codes.
 Legal Procedures: Common law uses an adversarial approach, while civil law follows
an inquisitorial system.
 Binding Precedents: Precedents are binding in common law but not in civil law.

b) Five Ways Through Which a Judicial Precedent May Lose Its Binding Force
(15 Marks)

Judicial precedents, which are decisions made by higher courts, may lose their binding force
under specific circumstances. Here are five ways this can happen:

1. Overruling

 A higher court may overrule a precedent set by a lower or equivalent court, meaning that
the earlier decision is no longer good law. Overruling occurs when a court considers that
the earlier decision was incorrect or no longer applicable to contemporary conditions.
 Example: In Hedley Byrne & Co Ltd v Heller & Partners Ltd (1964), the House of
Lords overruled earlier decisions that restricted the scope of liability in negligent
misstatements.

2. Distinguishing
  A court may avoid following a binding precedent by distinguishing the facts of the
current case from those of the precedent. If the material facts are sufficiently different,
the court may choose not to follow the previous decision, rendering it not applicable to
the case at hand.
 Example: In Merritt v Merritt (1970), the court distinguished the facts from Balfour v
Balfour (1919), noting that the latter involved a domestic arrangement while the former
was a legally enforceable contract.

3. Reversal

 A judicial precedent loses its binding force when a higher court reverses the decision of a
lower court on appeal. When an appellate court overturns a decision, the precedent
created by the lower court ceases to be binding.
 Example: If a decision by the Kenyan High Court is appealed and overturned by the
Kenyan Court of Appeal, the original decision no longer holds legal authority as a
precedent.

4. Per Incuriam

 A precedent may lose its binding force if it was made per incuriam, meaning "through
lack of care." This occurs when a decision is made without considering relevant statutory
provisions or binding authority. Decisions made per incuriam are not considered good
law.
 Example: In Young v Bristol Aeroplane Co Ltd (1944), the Court of Appeal outlined
that decisions made in ignorance of statute or binding authority are per incuriam and thus
not binding.

5. Legislative Overriding

 Parliament or the legislature may pass new laws or amendments that nullify the effect of
a judicial precedent. When a statute is passed that directly conflicts with an existing
precedent, the statute takes precedence, and the judicial decision is no longer binding.
 Example: In Kenya, after the passage of the Constitution of Kenya, 2010, some judicial
precedents based on the previous Constitution were overridden, such as decisions
concerning presidential immunity from certain legal actions.

In conclusion, judicial precedents may lose their binding force due to overruling by higher
courts, distinguishing of facts, reversal on appeal, decisions made per incuriam, or legislative
overriding. These mechanisms ensure that the law remains flexible and responsive to evolving
social and legal contexts.

a) Giving five (5) examples of each in Kenya, distinguish between written and unwritten law. (15
Marks) b) Discuss five (5) advantages of legislation as a source of law. (10 Marks) c) Explain
five (5) advantages and five (5) disadvantages of delegated legislation. (10 Marks)
a) Distinguishing Between Written and Unwritten Law in Kenya (15 Marks)

Written Law refers to laws that are formally enacted or codified in a written form, such as
constitutions, statutes, and regulations. These laws are created by legislative bodies or other
authorized entities and are accessible in legal documents.

Unwritten Law, on the other hand, consists of rules, principles, or customs that have not been
formally codified but are recognized and enforced by courts. These include customary law,
common law, and judicial precedents.

1. Written Law in Kenya

 Constitution: The Constitution of Kenya, 2010 is the supreme law of the land and
provides the framework for governance, rights, and responsibilities.
 Statutes: Laws passed by Parliament, such as the Penal Code and the Children Act.
 Subsidiary Legislation (Delegated Legislation): Laws made by bodies other than
Parliament under powers conferred by an Act, like traffic regulations made under the
Traffic Act.
 Treaties: International agreements that Kenya has ratified, such as the East African
Community Treaty.
 County Legislation: Laws passed by county governments in Kenya, such as the Nairobi
County Alcoholic Drinks Control Act.

2. Unwritten Law in Kenya

 Common Law: Principles derived from judicial decisions in the common law tradition.
In Kenya, courts apply common law where no statutory law exists.
 Judicial Precedent: Decisions made by higher courts that bind lower courts, such as
rulings of the Supreme Court of Kenya.
 African Customary Law: Recognized under Article 159 of the Constitution, it applies in
matters concerning marriage, land, or inheritance where applicable, such as customary
marriage practices.
 Islamic Law: Applied in personal law matters among Muslims, particularly in marriage,
divorce, and inheritance, under the Kadhi’s Courts Act.
 English Statutes of General Application: Old English laws that apply in Kenya if they
were relevant as of August 12, 1897, and are not inconsistent with Kenyan law, such as
parts of the Law of Property Act, 1925.

b) Five Advantages of Legislation as a Source of Law (10 Marks)

1. Certainty and Clarity

Legislation provides a clear and detailed framework of rules that are publicly available.
This clarity helps individuals understand their rights and obligations under the law.
 2. Consistency and Uniformity
Since legislation is applied universally within the jurisdiction, it promotes uniformity and
consistency in the application of the law, reducing the likelihood of arbitrary or
conflicting decisions.
3. Democratic Process
Legislation is created through a democratic process involving elected representatives in
Parliament. This ensures that laws reflect the will of the people and the public interest.
4. Flexibility and Adaptability
Parliament can pass new laws or amend existing ones to adapt to social, economic, or
technological changes. This ensures the law remains relevant and up-to-date.
5. Comprehensive Coverage
Legislation can address a wide range of issues comprehensively, filling in gaps in other
sources of law. It is often specific and detailed, covering various aspects of life and
governance.

c) Advantages and Disadvantages of Delegated Legislation (10 Marks)

1. Advantages of Delegated Legislation

1. Efficiency and Speed

Delegated legislation allows for quick law-making, especially in emergencies or
situations requiring rapid responses, such as the issuance of regulations during the
COVID-19 pandemic.
2. Expertise
Delegated legislation is often crafted by individuals or agencies with specialized
knowledge in particular areas, such as health or transport, ensuring that technical matters
are effectively addressed.
3. Flexibility
Delegated legislation allows for frequent updates or modifications to laws without going
through the lengthy parliamentary process. This is particularly useful in fields where
circumstances change rapidly, such as environmental regulations.
4. Relieves Parliamentary Workload
By delegating certain law-making powers, Parliament is relieved of handling every minor
detail and can focus on more significant legislative issues.
5. Local Relevance
Delegated legislation allows local authorities or specific bodies to create laws tailored to
their particular needs or circumstances, ensuring that legal rules are relevant to specific
regions or sectors.

2. Disadvantages of Delegated Legislation

1. Lack of Democratic Oversight

Delegated legislation is often made by unelected bodies, which may not be directly
accountable to the public, raising concerns about democratic legitimacy.
 2. Risk of Abuse of Power
The delegation of law-making power may result in the overreach of authority or the
enactment of regulations that go beyond the scope of the enabling Act, leading to abuse
of power.
3. Lack of Public Awareness
Delegated legislation is often not as widely publicized as Acts of Parliament, leading to a
lack of public knowledge or awareness about new rules that may affect citizens' rights
and responsibilities.
4. Complexity and Confusion
The large volume of delegated legislation can create a complex legal system that is
difficult for the public to understand, leading to confusion about the law.
5. Insufficient Parliamentary Scrutiny
While Parliament retains some control over delegated legislation, the level of scrutiny is
often limited, especially for minor regulations. This can lead to inadequate oversight and
the passing of poorly considered regulations.

In conclusion, written law in Kenya is formal, codified, and enacted through legal processes,
while unwritten law is derived from customs, judicial decisions, and principles. Legislation
offers numerous advantages as a source of law, including certainty and adaptability. However,
while delegated legislation provides flexibility and expertise, it also comes with risks such as
lack of oversight and potential complexity.

Supreme Court (1) There is established the Supreme Court, which shall consist of— (a) the Chief
Justice, who shall be the president of the court; (b) the Deputy Chief Justice, who shall— (i)
deputise for the Chief Justice; and (ii) be the vice-president of the court; and (c) five other
judges. (2) The Supreme Court shall be properly constituted for the purposes of its proceedings if
it is composed of five judges. (3) The Supreme Court shall have— (a) exclusive original
jurisdiction to hear and determine disputes relating to the elections to the office of President
arising under Article 140; and (b) subject to clause (4) and (5), appellate jurisdiction to hear and
determine appeals from— (i) the Court of Appeal; and (ii) any other court or tribunal as
prescribed by national legislation. (4) Appeals shall lie from the Court of Appeal to the Supreme
Court— (a) as of right in any case involving the interpretation or application of this Constitution;
and (b) 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). (5) A certification by the
Court of Appeal under clause (4)(b) may be reviewed by the Supreme Court, and either affirmed,
varied or overturned. (6) 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. (7) All courts, other than the Supreme Court, are bound by the
decisions of the Supreme Court. (8) The Supreme Court shall make rules for the exercise of its
jurisdiction. (9) An Act of Parliament may make further provision for the operation of the
Supreme Court.

outlines the key provisions regarding the Supreme Court of Kenya, as established by the
Constitution of Kenya, 2010. Here’s a breakdown of the significant points:
1. Composition of the Supreme Court (Article 1)

 The Supreme Court consists of seven judges:

o The Chief Justice, who is the president of the court.
o The Deputy Chief Justice, who acts as vice-president and deputises for the
Chief Justice.
o Five other judges.

2. Quorum for Court Proceedings (Article 2)

 The Supreme Court is properly constituted when it is composed of five judges for any of
its proceedings.

3. Jurisdiction of the Supreme Court (Article 3)

The court exercises two types of jurisdiction:

 Exclusive original jurisdiction over disputes concerning presidential elections under

Article 140.
 Appellate jurisdiction over appeals from:
o The Court of Appeal.
o Any other court or tribunal as prescribed by national legislation.

4. Conditions for Appeals to the Supreme Court (Article 4 & 5)

 Appeals can be made to the Supreme Court:

o As of right, in cases involving the interpretation or application of the
Constitution.
o In any other case, if the Supreme Court or the Court of Appeal certifies that the
matter involves an issue of general public importance.
o The certification by the Court of Appeal can be reviewed and either affirmed,
varied, or overturned by the Supreme Court.

5. Advisory Opinion (Article 6)

 The Supreme Court has the power to give advisory opinions at the request of:
o The national government.
o Any State organ.
o Any county government.
 These opinions must concern matters related to county government.

6. Binding Nature of Supreme Court Decisions (Article 7)

 All other courts in Kenya are bound by the decisions of the Supreme Court, establishing
the Supreme Court as the highest judicial authority in the land.
Court of Appeal (1) There is established the Court of Appeal, which— (a) shall consist of the
number of judges, being not fewer than twelve, as may be prescribed by an Act of Parliament;
and (b) shall be organised and administered in the manner prescribed by an Act of Parliament.
(2) There shall be a president of the Court of Appeal who shall be elected by the judges of the
Court of Appeal from among themselves. (3) The Court of Appeal has jurisdiction to hear
appeals from— (a) the High Court; and (b) any other court or tribunal as prescribed by an Act of
Parliament

This excerpt outlines the establishment, composition, and jurisdiction of the Court of Appeal in
Kenya as provided for by the Constitution of Kenya, 2010. Below is a breakdown of its key
features:

1. Establishment and Composition of the Court of Appeal (Article 1)

 The Court of Appeal is established as a superior court of record in Kenya.

 The number of judges on the Court of Appeal:
o Must be not fewer than twelve.
o The exact number is to be prescribed by an Act of Parliament.
 The Court is to be organised and administered in the manner prescribed by the same
Act of Parliament.

2. Leadership of the Court of Appeal (Article 2)

 There is a president of the Court of Appeal.

 The president is elected by the judges of the Court of Appeal from among themselves,
ensuring internal leadership selection within the court.

3. Jurisdiction of the Court of Appeal (Article 3)

The Court of Appeal has appellate jurisdiction and is empowered to hear appeals from:

 The High Court of Kenya, making it a higher authority that reviews decisions made by
the High Court.
 Any other court or tribunal as prescribed by an Act of Parliament, indicating that the
Court of Appeal can also hear appeals from specialized courts and tribunals depending on
statutory provisions.

High Court (1) There is established the High Court, which— (a) shall consist of the number of
judges prescribed by an Act of Parliament; and (b) shall be organised and administered in the
manner prescribed by an Act of Parliament. (2) There shall be a Principal Judge of the High
Court, who shall be elected by the judges of the High Court from among themselves. (3) Subject
to clause (5), the High Court shall have— (a) unlimited original jurisdiction in criminal and civil
matters; (b) jurisdiction to determine the question whether a right or fundamental freedom in the
Bill of Rights has been denied, violated, infringed or threatened; (c) jurisdiction to hear an appeal
from a decision of a tribunal appointed under this Constitution to consider the removal of a
person from office, other than a tribunal appointed under Article 144; (d) jurisdiction to hear any
question respecting the interpretation of this Constitution including the determination of— (i) the
question whether any law is inconsistent with or in contravention of this Constitution; (ii) the
question whether anything said to be done under the authority of this Constitution or of any law
is inconsistent with, or in contravention of, this Constitution; (iii) 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 (iv) a question relating to
conflict of laws under Article 191; and (e) any other jurisdiction, original or appellate, conferred
on it by legislation. (4) Any matter certified by the court as raising a substantial question of law
under clause (3)(b) or (d) shall be heard by an uneven number of judges, being not less than
three, assigned by the Chief Justice. (5) The High Court shall not have jurisdiction in respect of
matters— (a) reserved for the exclusive jurisdiction of the Supreme Court under this
Constitution; or (b) falling within the jurisdiction of the courts contemplated in Article 162(2).
(6) 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.
(7) For the purposes of clause (6), the High Court may call for the record of any proceedings
before any subordinate court or person, body or authority referred to in clause (6), and may make
any order or give any direction it considers appropriate to ensure the fair administration of justice

This excerpt provides details on the establishment, composition, and jurisdiction of the High
Court of Kenya as outlined in the Constitution of Kenya, 2010. Below is a breakdown of its
significant provisions:

1. Establishment and Composition of the High Court (Article 1)

 The High Court is established as a superior court of record.

 The number of judges is to be prescribed by an Act of Parliament, meaning Parliament
determines how many judges serve in the High Court.
 The organisation and administration of the High Court are also prescribed by an Act of
Parliament.

2. Leadership of the High Court (Article 2)

 The High Court is led by a Principal Judge.

 The Principal Judge is elected by the judges of the High Court from among
themselves, allowing the judges to choose their leader.

3. Jurisdiction of the High Court (Article 3)

 The High Court has unlimited original jurisdiction in both criminal and civil matters.
This means it can hear any case, regardless of its nature, unless specified otherwise by the
Constitution or statute.
  The High Court has jurisdiction over matters related to the Bill of Rights, where it can
determine if any right or fundamental freedom has been denied, violated, infringed, or
threatened.
 It can also hear appeals from decisions of tribunals established under the Constitution,
except for those under Article 144 (removal of the President).
 The High Court has jurisdiction over constitutional interpretation, including:
o Whether any law is inconsistent with or contravenes the Constitution.
o Whether actions taken under the Constitution or any law contravene the
Constitution.
o Matters related to the constitutional powers of State organs regarding county
governments and the relationship between different levels of government.
o Conflict of laws issues under Article 191.
 It also has any other jurisdiction, whether original or appellate, that is conferred by
legislation.

4. Handling Substantial Questions of Law (Article 4)

 If a case raises a substantial question of law regarding the Bill of Rights or

constitutional interpretation, the matter is heard by an uneven number of judges, not
fewer than three, who are assigned by the Chief Justice.

5. Limitations on Jurisdiction (Article 5)

 The High Court does not have jurisdiction over:

o Matters reserved for the exclusive jurisdiction of the Supreme Court.
o Matters within the jurisdiction of specialized courts under Article 162(2), such as
the Employment and Labour Relations Court or the Environment and Land Court.

6. Supervisory Jurisdiction (Article 6)

 The High Court has supervisory jurisdiction over subordinate courts and any person,
body, or authority exercising a judicial or quasi-judicial function. However, it cannot
supervise superior courts, such as the Court of Appeal or Supreme Court.
 In exercising its supervisory jurisdiction, the High Court may call for records of
proceedings from these bodies and issue orders or directions to ensure fair
administration of justice.