Keith Mack
The Kenyan legal system is derived from the British Common Law system, which is based on the doctrine of precedent. This doctrine is reflected in the Latin maxim, stare decisis et non quieta movere, which encourages adherence to past decisions and discourages disturbing settled matters. The Kenyan Constitution, promulgated in 2010, is the supreme law of the land, taking precedence over all other forms of law. It outlines fundamental rights, freedoms, government structure, and devolution principles. Kenya's legal system includes a hierarchical structure of courts, with the Supreme Court as the highest authority, followed by the Court of Appeal and the High Court. The recognition of judge-made law and the commitment to precedent are key attributes of the Kenyan legal system, influenced by its colonial past.
| Characteristics | Values |
|---|---|
| Legal Origins | The Kenyan legal system is descended from the British Common Law system. |
| Doctrine of Precedent | A precedent is a judgment or decision of a court, recorded in a law report, used as an authority for reaching the same decision in a subsequent case. |
| Highest Court | The Supreme Court is the highest court in Kenya. |
| Binding Decisions | The Supreme Court's decisions are binding on the Court of Appeal, the High Court, and the Magistrate's Courts. |
| Legislative Authority | The authority to make laws is primarily vested in Parliament and County Assemblies. |
| National Laws | Parliament makes laws that apply nationally. |
| County Laws | County Assemblies make laws that apply to their respective counties. |
| Judicial Independence | Judges are generally bound by precedent but can distinguish or overrule previous decisions. |
| Judicial Impartiality and Transparency | The doctrine of precedent ensures judges' impartiality and transparency. |
| Legal Developments | The courts can lay down new principles or extend old principles to meet novel circumstances. |
| Fundamental Rights | The Constitution sets out the fundamental rights and freedoms of citizens. |
| Popular Arbitration | Chiefs are the most popular third-party arbitrators, especially in rural areas. |
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What You'll Learn
Kenya's legal system is descended from British Common Law
The Kenyan Constitution, promulgated in 2010, is the supreme law of the land, taking precedence over all other forms of law. It sets out the fundamental rights and freedoms of citizens, the structure of government, and the principles of devolution, among other critical provisions. Any law or action that contradicts the Constitution is deemed invalid. The authority to make laws in Kenya is primarily vested in two institutions: Parliament and County Assemblies. Parliament makes laws that apply nationally, while County Assemblies make laws for their respective counties.
Kenya has a hierarchical system of courts, with the Supreme Court as the highest court in the land. The decisions of the Supreme Court are binding on all lower courts, including the Court of Appeal, the High Court, and the Magistrate's Courts. The Court of Appeal's decisions are binding on the High Court and the Magistrate's Courts, and the High Court's decisions are binding on the Magistrate's Courts. While lower courts generally follow the decisions of higher courts, they can decline to follow a decision if they find that the circumstances of the case before them are different from those in the previous case. This is called distinguishing a case and acts as a check against the rigid application of the doctrine of precedent.
While Kenya's legal system has its roots in British Common Law, it has evolved to adopt written constitutions and broaden the repertoire of common law. In constitutional law, Kenya follows the system of judicial review as practiced in the United States, which has inspired changes to some of the basic foundations of English common law.
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The doctrine of precedent
The Kenyan legal system is derived from the British Common Law system, which includes the doctrine of precedent as one of its fundamental principles. The doctrine of precedent, as captured in the Latin maxim "stare decisis et non quieta movere", means that it is best to "adhere to decisions and not to disturb questions put to rest". In other words, the doctrine of precedent states that cases involving similar circumstances should be decided using similar principles of law.
There are two types of precedent that judges consider: mandatory or binding precedent, and persuasive precedent. Binding precedent refers to prior court decisions that were made by a higher-level court within the same jurisdiction, and courts are required to follow these earlier decisions. Persuasive precedent, on the other hand, is not binding, but courts may consider it to see how courts in other jurisdictions have resolved similar legal issues.
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The role of judges
The Kenyan legal system is derived from the British Common Law system. One of the fundamental doctrines of this system is the doctrine of precedent, which is based on the Latin maxim: stare decisis et non quieta movere, meaning that it is best to adhere to past decisions and not disturb settled matters. This doctrine means that similar cases with similar circumstances should be decided using similar principles of law.
In common-law countries, the path to becoming a judge is distinct. Typically, after completing formal legal education, an aspiring judge will spend a significant amount of time in private law practice or, less commonly, in law teaching or government legal service. Judges are then appointed or elected to office, without any competitive examination. In common-law countries, a person may be appointed or elected directly to the country's highest or intermediate court without any prior judicial experience.
In contrast, in a typical civil-law country, a law graduate chooses between a judicial career and private practice. If they choose the former, they must pass an examination to be appointed to the judiciary and enter service, starting at a low-level court. From there, they work their way up the judicial ladder until retirement. Their promotions and assignments are determined by a council of senior judges or a minister of justice.
In common-law countries, judges enjoy greater power, prestige, and independence than their civil-law counterparts. Common-law judges are not subject to outside supervision or inspection by a council of judges or a minister of justice. They cannot be transferred from court to court or place to place. The only administrative control over common-law judges is exercised by their judicial colleagues, and this is generally limited to matters such as requiring periodic reports of pending cases or arranging temporary transfers between courts due to factors like illness or calendar congestion.
Judges in common-law countries are also integral to the development of the law and the evolution of jurisprudence. They can quickly lay down new principles or extend old ones to meet novel circumstances, contributing to the dynamic nature of common law.
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The Constitution as supreme law
The Kenyan legal system is descended from the British Common Law system. This system is based on the doctrine of precedent, captured in the Latin maxim: stare decisis et non quieta movere. This means that it is best to adhere to decisions and not disturb settled matters. In practice, this means that a precedent, or a judgment of a court, is used as an authority to guide future decisions in similar cases.
The doctrine of precedent means that every court in Kenya is bound to follow the decisions made by higher courts. The Supreme Court is the highest court in Kenya, and its decisions are binding on all lower courts. The Court of Appeal's decisions are binding on the High Court and the Magistrates' Courts, and the High Court's decisions are binding on the Magistrates' Courts.
However, a lower court can decline to follow the decision of a higher court if it finds that the circumstances of the case are different. This is called distinguishing a case, and it acts as a check against the rigid application of the doctrine of precedent, preventing bad decisions from becoming law. Additionally, while the Supreme Court usually follows its own decisions, it can overrule them, setting them aside and removing their force as precedent.
Kenya's legal system has evolved since its adoption of the 2010 Constitution. While the country's legal system is based on British Common Law, Kenya, like other former British colonies in Africa, has adopted a written constitution and broadened the scope of common law. In doing so, they have followed a system of judicial review similar to that of the United States, leading to a burgeoning development of judge-made constitutional jurisprudence.
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The hierarchy of courts
The Kenyan legal system is descended from the British Common Law system, which includes the doctrine of precedent. This means that every court is bound to follow the decisions made by the court above it. The Supreme Court is the highest court in Kenya, and its decisions are binding on all other courts.
The Court of Appeal's decisions are binding on the High Court and the Magistrates' Courts. The High Court's decisions are binding on the Magistrates' Courts. The Magistrates' Courts do not create any binding precedent for any court, and they are subordinate courts established under the Constitution of Kenya.
The hierarchy of the Magistrates' Courts is dependent on pecuniary jurisdiction. The pecuniary jurisdiction is as follows:
- 20 Million shillings, where the court is presided over by a Chief Magistrate
- 15 Million shillings, where the court is presided over by a Senior Principal Magistrate
- 10 Million shillings, where the court is presided over by a Principal Magistrate
- 7 Million shillings, where the court is presided over by a Senior Resident Magistrate
A lower court can decline to follow the decision of a court above it if it finds that the circumstances of the case before it are different from those in the previous case. This is called distinguishing a case.
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Frequently asked questions
Yes, the Kenyan legal system is descended from the British Common Law system.
Common law is 'the body of law derived from judicial decisions, rather than from statutes or constitutions'.
The primary sources of Kenyan law are the Constitution, Acts of Parliament, other written laws, and the substance of common law and the doctrines of equity.
The doctrine of precedent is a fundamental doctrine of common law. It is the idea that a precedent, or a judgment or decision of a court, is used as an authority for reaching the same decision in a subsequent case.
