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TAKEAWAY CAT

MEMBERS: CIT-227-028/2015, CIT-227-027/2015, CIT-227-032/2015,CIT-227-010-2015.

Question One

Describe the composition and jurisdiction of the following courts: (12 Marks)

  1. High court

The High Court comprises a maximum of 150 judges and has original jurisdiction in all criminal and civil matters. 

High Court divisions include Family, Commercial and Admiralty, Constitutional and Judicial Review, Land and Environment, Criminal, Industrial and Environmental and Land Court. There are at least 20 High Court stations countrywide.

The High court of Kenya is established under article 165 of the constitution of Kenya. It has supervisory jurisdiction over all other subordinate courts and any other persons, body or authority exercising a judicial or quasi-judicial function. The judges responsible elect one of them to act as the topmost principal judge in the court system. Has unlimited original jurisdiction and carries out supervisory roles.

2. Supreme Court

The Court comprises of the Chief Justice, who is the President of the Court, the Deputy Chief Justice, who is the Vice-President of the Court and five other Judges.

The Supreme Court is established under Article 163 of the Constitution as the final arbiter and interpreter of the Constitution.

3. Court Martial

It is established by section 85(1) of the Armed Forces Act as a Sub-ordinate court.

Composition
The court is presided over by an officer who sits with not less than 2 other persons or not
less than four if an officer is being tried or where the maximum penalty for the offence is
death.

The court has jurisdiction to impose the following sentences: imprisonment, fine, dismissal from the armed forces, reprimand, reduction of rank, capital punishment.

4 . Kadhis Court

The court is headed by a Chief Kadhi and parliament is given the authority to enact laws describing the guidelines, qualification and jurisdiction of this court.

Their jurisdiction is limited to the determination of questions of Muslim Law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim Religion and submit to the jurisdiction of the Kadhis’ courts.

Click to watch this video from the Judiciary of Kenya

Question Two

Explain the advantages and disadvantages of statute law as a source of law in Kenya. (6 Marks)

Advantages of Statutes Law

  1. Democratic: Parliamentary law making is the most democratic legislative process. This is because parliaments all over the world consists of representatives of the people they consult regularly. Statute Law therefore is a manifestation of the will of the people.
  2. Resolution of legal problems: Statute Law enables society to resolve legal problems as and when they arise by enacting new statutes or effecting amendments to existing Law.
  3. Dynamic: Statute Law enables society to keep pace with changes in other fields e.g. political, social or economic. Parliament enacts statutes to create the necessary policies and the regulatory framework.
  4. Durability: Statute Law consists of general principles applicable at different times in different circumstances. It has capacity to accommodate changes without requiring amendments.
  5. Consistency / Uniformity: Statute Law applies in-discriminating i.e. it regulates the conduct of all in the same manner and any exceptions affect all.
  6. Adequate publication: Compared to other sources of Law, statute Law is the most widely published in that it must be published in the Kenya Gazette as a bill and as a Law. Additionally, it attracts media attention.
  7. It is a superior source of law in that only the Constitution prevails over it.

Disadvantages of Statute Law

  1. Imposition of Law: Statute Law may be imposed on the people by the dominant classes in society. In such a case, the Law does not reflect the wishes of the citizens nor does it cater for their interests.
  2. Wishes of M.Ps: Statute Law may at times manifest the wishes and aspirations of M.Ps as opposed to those of the citizenry.
  3. Formalities: Parliamentary Law making is tied to the Constitution and the National Assembly standing orders. The Law making process is slow and therefore unresponsive to urgent needs.
  4. Bulk and technical Bills: Since parliament is not made up of experts in all fields, bulky and technical Bills rarely receive sufficient treatment in the national assembly, their full implications are not appreciated at the debating stage.

Click to access No.%2010%20of%201969.pdf

Question Three

Distinguish between the following set of terms: (12 Marks)

  1. Public law and private law – public law deals with issues that affect the general public or state – society as a whole. Some of the laws that its wide scope covers are: administrative law, criminal law, constitutional laws,municipal laws , international laws e.t.c whereas private law affects the rights and obligations of individuals, families, businesses and small groups and exists to assist citizens in disputes that involve private matters. Its scope is more specific than public law and covers: contract laws, tort laws, property law, family laws e.t.c.
  2. Law and Morality – Law can be defined as a different sets of rules regulating eternal human actions and conduct of individuals in their dealings with other individuals and with the government. Morality on the other hand is the sense of judgment between wrong and right by reference to certain standards developed by society over time.
  3. Substantive and Procedural law – substantive law defines rights and duties of parties and provides remedies when those rights are violated e.g. law of contract, negligence, defamation. Procedural law consists of the rule which determines the manner in which the court proceedings are required to be conducted in both civil and criminal cases including specification of the steps to be taken or the procedure to be followed by a person who intends to do a lawful act.
Public vs Private Law