CONCLUDING LECTURE

We began this course by discussing your reasons for choosing to study law as well as your
expectations with regard to this course. As we conclude on this course, I hope that your
expectations have been met. This concluding lecture shall be a general review of all the lectures.
It shall serve as a form of revision.

Lecture 1: Introduction

This course is divided into two:

1. Legal Systems; and

2. Legal Methods (which I handled).

Whereas Legal Systems deals with the ‘what’ and ‘why’ of the law, Legal Methods deals with the
‘how’ of the law. Legal Systems is therefore more theoretical whereas Legal Methods is more
practical. Legal Methods is the process followed by those tasked with making the law, activating
the law and operating the law in reaching legal decisions through the legal system. It is the manner
in which Courts and lawyers use or apply the laws to arrive at a legal conclusion.

As we had discussed in the first lecture, Legal Methods acts as a general introduction to the law,
how it operates and how it is to be interpreted. It is therefore my expectation that as we conclude
this course, you have been able to learn how to properly carry out legal research and legal writing.
It is my hope that you were able to fully grasp and understand the contents of this course as opposed
to cramming or memorizing it.

During the first lecture, I set out what you as students should be able to do after going through this
entire course. I therefore find that it would be prudent on our part to go through the list and establish
that indeed you have gained the required knowledge and skills from this course. By the end of this
course, you as students should be able to:

1. correctly interpret the various sources of law;

2. discern the various divisions of law and their applicability;
3. demonstrate an understanding of the court structure and the jurisdiction of each court;

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 4. demonstrate an understanding of the legal process, that is, law making, common law case
techniques, legal analysis as well as logic and legal reasoning;
5. properly apply the principles of statutory interpretation;
6. correctly apply the guides to construction;
7. demonstrate an understanding of judgments, their function and their style; and
8. demonstrate an understanding of the presumptions that the Courts and lawyers rely on as
well as their application.

It is my hope that each and every student can confidently say that they are able to do each of the
items on the list at this point. However, for purposes of revision, I shall revisit all the lecturers
generally. This is the point to ask about concepts you might want clarified.

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Lecture 2: Sources of Law and its Classification

Topic 1: Sources of Law

Sources of law mainly refer to the origins from where particular laws derive authority and validity.
We discussed the classifications of the sources of law and grouped them into formal sources,
material sources and non-formal sources. Formal sources are the sources from which a rule of law
derives its force and validity. They include constitutions, statutes and judicial precedents. Material
Sources are those which give the matter or content of a principle of law. These sources are
concerned with the substance, elements or constituents of law. They tell us what is contained in
the law. Non-formal sources of law include morality, good conscience, standards of justice.
The major sources of law include common law, equity, statutes, customary law and religion.
Common law is a branch of law that was developed by the common law courts in England from
the customs, practices and usages of the English people. As a result of the initiative by Norman
King of England it was universalized to a uniform system of law in England. The substance of
common law was adopted into Kenya vide the Reception Clause.
Equity refers to the maxims are the maxims developed by the Lord Chancellor’s Courts in England
to supplement Common Law. Due to the various shortcomings of common law, litigants were
largely dissatisfied and petitioned the King to administer justice to his subjects. The King attended
to this petitions but later transferred them to the Lord Chancellor. The Lord Chancellor established
his courts which administered justice on the basis of equity and fairness. The doctrines developed
out of the decisions by the Lord Chancellor therefore came to be known as equity. The doctrines
of equity were incorporated in the Kenyan law vide the Reception Clause.
Legislation is that source of law which consists in the declaration of legal rules by a competent
authority. The power to make laws vests in the parliament. All statutes should conform to the
constitution and other international law.
Religious laws are the ethical codes and religious doctrines and traditions applicable to people who
ascribe to a particular belief. Religion played a major role in formulation of most laws in the
ancient uncivilized societies.
The sources of law in Kenya include the constitution, regional and international treaties, general
rules of international law, statute law (including certain Acts of the UK parliament applicable in
Kenya, certain Acts of the Indian parliament, certain acts of the Legislative council and delegated

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or subsidiary legislation), judicial precedents, common law the doctrines of Equity, statutes of
general application in force in England on the 12th August, 1897, and the procedure and practice
observed in courts of justice in England at that date as well as African customary law.
Under, division of law we discussed civil, criminal and international law. Civil law is that division
of law that deals with private rights of individuals. It is basically the law that outlines private rights
and remedies, and manages disputes between individuals in such areas as contracts, property, and
family Law. Criminal law seeks to prosecute wrongdoers for violating the state’s penal law.
Criminal cases are those in which the State prosecutes a person or an organization for committing
an act which is not in the interest of the public, and therefore considered to be an offense against
the State. International Law comprises the various laws, rules and customs which deal with the
legal interactions between different states and governments, government agencies, individuals and
other legal persons to include their rights and responsibilities in these dealings International law
provides a common legal framework that allows people of different nationality to interact.

Topic 2: The Court Structure

Courts are broadly categorized into superior courts and subordinate courts. Superior courts
comprise of the Supreme Court, Court of Appeal, High Court, Employment and Labour Relations
Court and the Environment and Land Court. The subordinate courts comprise of the Magistrates’
Courts, Kadhis’ Court, Courts Martial and Tribunals established under the constitution to exercise
judicial or quasi-judicial functions.

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Lecture 3: Legal Process

Topic 1: Law Making

Law making is the process of crafting or enacting laws and it is done by both the legislature and
the judiciary. Legislative law making is done by legislative bodies such as Parliament and it creates
written statutory law or statute law referred to as legislation. Judicial law making is done by judges
by setting precedents.

Legislative Law Making

Legislative law making refers to the crafting of statutes and other subsidiary legislation that is
created by bodies that have been delegated the mandate to legislate by Parliament. The Fourth
Schedule of the Constitution of Kenya 2010 provides that the power to enact legislation is split
between the National Legislature and the County Legislature. Therefore, primary legislation is that
created by either the national legislative body or the legislative bodies that exist on the county
level. Delegated legislation refers to the laws that are created by bodies that have been delegated
to the law making mandate.

There exist different types of Statutes depending on how long the statute is supposed to be
applicable, its effect, the extent of its application, its objective, its contents etc.

Primary Legislation

The Process of Legislation/Law Making Process

1. Publication and Circulation.

The proposed Bill is published in the Kenya Gazette. Petitions and memoranda are then allowed
through either the people’s elected representatives or through individuals.

2. First Reading.

The Bill is introduced to the legislative body. The Bill is then assigned a tracking number and
assigned to the relevant Sectorial Committee.

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3. Second Reading.

The Bill is read a second time before the legislative body highlighting the key objectives and
purpose of the Bill. A vote is taken on the general principles of the Bill before it is sent back to the
designated Committee.

4. Committee Stage.

The Bill is discussed in detail by the designated Committee. Possible amendments are offered and
they are debated on. The opinion of the public is also sought at this stage and put into consideration.

5. Report Stage.

After the designated Committee has examined the Bill in detail, they table their report before the
legislative body at this stage. Further amendments can be made by the Members by way of voting.

6. Third Reading.

The Bill is read for the third time before the legislative body with all the amendments. The
opportunity to amend the Bill is limited. It is then either passed or opposed by the legislative body.

7. Assent.

Article 116 of the Constitution of Kenya 2010 provides that where a Bill has been passed in
Parliament and subsequently assented by the President, it shall be published in the Kenya Gazette
within 7 days after the presidential assent. The Bill then becomes an Act of Parliament or an Act
of the County Assembly. This formal assent acts as the President or Governor giving his consent
to the Act of Parliament or the County Assembly.

8. Commencement.

Unless an Act of Parliament expressly stipulates otherwise, the Act shall enter into force 14 days
after it has been published in the Kenya Gazette.

Delegated Legislation/Subsidiary Legislation

A statute may empower a State organ to make provisions that have the effect of the law and such
statute must expressly state the objective of the delegation, the nature and scope of law that the
organ may make and the necessary principles that will apply. Such provisions are meant to control

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the actions of the organ so that it does not make laws that are outrageous, unreasonable or
unconstitutional.

Judicial Control

In situations where bodies with delegated legislative power make laws that are not within the scope
their delegated power, a Court of law can declare such legislation to be invalid. This in accordance
with the doctrine of Ultra Vires. This doctrine empowers the Courts to oversee the decisions of
legislative bodies. The Court can thus declare subsidiary legislation to either be substantively ultra
vires (where the empowered body exceeds the power they have been given) or procedurally ultra
vires (where the empowered body does not follow the compulsory procedures that are prescribed
in parent Act).

Judicial Law Making

The decisions reached by Courts make the law as they form part of precedent. Precedent refers to
a Court decision that is cited by another Court as an analogy to solve a similar statement of law.
Precedent is binding on future Courts and they must rely on it as per the doctrine of Stare Decisis.
It brings about certainty and fairness in that a party going to Court can predict the decision of the
Court based on a previous case of similar facts.

For precedent to be an effective source of law, the reasons behind a past decision and the principles
that the Court used to decide on the case making the precedent must be known. This is referred to
as the Ratio Decidendi. This rule of law must be clear because for a Court to decide on a matter
relying on the decision of a previous Court, the statement of law must be the same in both cases.

In modern times, Courts base their decisions on statutory laws that exist. Statutory laws take
priority over precedent. In a situation where there exists no written law providing for the particular
circumstance, a Court will make its decision based on Common Law (precedent) or if no precedent
exists, it will create precedent.

Judicial activism also falls under judicial law making. It refers to situations where judges base their
decisions on their personal views on matters such as public policy as opposed to basing them on
the law. This form of judicial law making is viewed as improper on the basis that the function of

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the judiciary is to interpret the law not to make the law. It is however important because in most
cases it comes into play where the laws or precedent being invalidated are oppressive in nature.

Topic 2: Logic and Legal Reasoning

Logic and legal reasoning therefore refers to the process by which a legal decision is reached
following the logical conclusion of other legal decisions that were previously given. A legal
argument is therefore, simply put, a likely conclusion reached based on legal reasons.

1. Open and Closed System of Thinking

The Open System of Thinking is based on the assumption that if something is not known to be true
it is unknown whereas the Closed System of Thinking is based on the assumption that if something
is not known to be true it is false.

The Closed System of Thinking is applicable and efficient in a situation where all the necessary
facts and information exist in a matter, that way, anything else that falls outside the scope of the
given information is considered false. The Open System of Thinking is applicable and efficient in
a situation where the information given is incomplete. It is a useful system in this scenario as often
the goal is to discover the missing information or new information thus prompting further
investigation.

2. Syllogism and Sorites

Syllogism refers to a way of logical reasoning where two or more linked premises are used so as
to draw a conclusion. In syllogism, a proposition is drawn from two or more others. The deduced
proposition is the conclusion whereas the propositions from which the conclusion is drawn are the
premises. The premises are linked by a common term that does not exist in the conclusion.
If the premises used are true and the syllogism is properly construed, a syllogism is an iron clad
logical argument because the conclusion reached must be true as well. A syllogism will only be
considered as valid if based on logic, it is impossible for a false conclusion to be deduced from
true premises.
When it comes to legal arguments, the major premise is normally a statement of law while the
minor premise is a statement of fact. The conclusion is therefore deduced by applying the law to
the facts. Only relevant laws and facts should be taken into consideration. Failure to consider what

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is relevant will lead to a conclusion that is false. By using syllogisms, judgements and legal
arguments are easier to understand as the legal reasoning behind them is clear. Furthermore, they
are shorter as only the relevant matters are taken into consideration.
Sorites is also referred to as polysyllogism. It is made up of strings of multiple premises that come
together to form a series of syllogisms. The conclusion of the first syllogism together with the next
proposition form both the major and minor premise of the next syllogism and so on and so forth.
It is only the conclusion of the last syllogism that does not form the premise of another syllogism.
If the conclusions of all the syllogisms save for the last one are removed and only the premises
that remain and the final conclusion are read, the resulting argument is still valid.
3. Validity and Truth

Validity refers to the quality of something being sound from a logical or factual point. Truth refers
to something being true or in line with fact or reality. In terms of logic and legal reasoning, truth
goes to the statements/premises/propositions while validity goes to the argument. It is thus the
premises that are considered true and the argument considered valid. If the premises are true and
the argument is valid, then the conclusion reached will be true/sound.

Arguments can be valid even if the premises are not true. However, such an argument will not
reach a sound legal conclusion. It is therefore very important for both the premises to be true and
the argument to be valid so as to reach a sound legal conclusion. The premises that form the basis
of the argument should however not be so general and unrelated as to lead to a situation where,
though the premises and conclusions are true, the argument is not valid.

4. Analogy

To reason by analogy is to find similarities between the situation at hand and other known
situations. A rule of law is applied to a case because the facts of the case are similar to the terms
of the rule. Analogical reasoning is primarily the doctrine of precedent. In analogical reasoning, a
person reasons by example, from case to case. A proposition descriptive of the first case is made
into a rule of law and then applied to a next similar situation.
Analogical reasoning, like precedent, is advantageous in that there is some level of stability and
predictability involved. Analogical reasoning is also important as through the process of studying
and comparing previous decisions, jurisprudence is developed. Furthermore, when judges rely on

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already decided cases to reach decisions, it is less likely that the decision will be based on their
personal biases.
5. Deduction

Deduction refers to the method of reasoning where one takes assumptions and infers conclusions
from these assumptions. The argument moves from the general to the particular. It is these general
statements that make up the basis of the argument. Deduction only reaches a solid argument if the
general statements that make up the base of the argument are true.

6. Induction

Induction refers to the method of legal reasoning where one moves from specific instances to
general instances. The idea here is to reach a conclusion by reviewing various situations or cases
and finding the causal relation that exists between them. The general principle or rule will be
inferred by looking at a large number of specific cases and seeing what the common factor is. The
generalization is the logical conclusion.

The Case of Ronald Opus: Suicide or Murder?

In order to illustrate how to go about legal reasoning, we shall discuss the fictional case of Ronald
Opus and apply the skills we have learnt to reach a legal decision in the case. This case was told
in 1987 by Don Harper Mills, who was the President of the American Academy of Forensic
Sciences, at a speech banquet. With time, it has attained the status of an urban legend as people
circulate it claiming that it is a factual story. It has also been the subject of various TV shows.
Facts:
On March 23, 1994, a medical examiner viewed the body of Ronald Opus and concluded that he
died from a gunshot wound of the head caused by a shotgun. Investigation to that point had
revealed that the decedent had jumped from the top of a ten-story building with the intent to
commit suicide. He left a note indicating his despondency. As he fell past the 9th floor, his life was
interrupted by a shotgun blast through a window, killing him instantly. Neither the shooter nor the
decedent was aware that a safety net had been erected at the 8th floor level to protect some window
washers from falling to their death.
Ordinarily, a person who sets out to commit suicide and ultimately succeeds, even though the
mechanism might not be what they intended, is still defined as having committed suicide. Mr.

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Opus was shot on the way to certain death nine stories below at street level, but his suicide attempt
probably would not have been successful because of the safety net.
The room on the 9th floor from whence the shotgun blast emanated was occupied by an elderly
man and his wife. They were arguing vigorously, and he was threatening her with a shotgun. The
man was so upset that when he pulled the trigger he completely missed his wife, and the pellets
went through the window striking Mr. Opus.
When one intends to kill subject A but kills subject B in the attempt, one is guilty of the murder of
subject B. The old man was confronted with the murder charge, the old man and his wife were
adamant. They both said they thought the shotgun was unloaded. The old man said that it was his
longtime habit to threaten his wife with the unloaded shotgun. He had no intent to murder her.
Therefore, the killing of Mr. Opus appeared to be an accident, that is, the gun had been accidentally
loaded.
The continuing investigation turned up a witness who saw the old couple’s son loading the shotgun
about six weeks prior to the fatal accident. It transpired that the old lady had cut off her son's
financial support, and her son, knowing the propensity of his father to use the shotgun
threateningly, loaded the gun with the expectation that the father would shoot his mother.
Now comes the exquisite twist. Further investigation revealed that the son was in fact Ronald
Opus. He had become increasingly despondent over both the loss of his financial support and the
failure of his attempt to engineer his mother’s murder. This led him to jump off the ten-story
building on March 23rd, only to be killed by a shotgun blast through a 9th story window.
Law:
Murder
Any person who with malice aforethought causes the death of another person by an unlawful act
or omission is guilty of murder.
Malice aforethought shall be deemed to be established by evidence proving an intention to cause
the death of or to do grievous harm to any person, whether that person is the person actually killed
or not.
Attempted Suicide
Any person who attempts to kill himself is guilty of a misdemeanor.
NB: It is not an offence to commit suicide.

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Now that we have facts of the case and the applicable law, we are tasked with applying the law to
the material facts of the case and giving a conclusion on whether what happened amount to murder
or suicide, and in doing so, we are to give our reasons behind this conclusion. We will do this as
follows:
1. Establish the relevant facts of the case.
2. Apply the law to the relevant facts.
3. Determine the legal conclusion.

The Relevant Facts

- Ronald Opus jumped from the top of a ten-story building with the intent to commit suicide.
- A net had been erected at the 8th floor level to protect some window washers from falling to
their death.
- As he was falling, his life was interrupted by a shotgun blast through a window on the 9th floor,
killing him instantly.
- The fatal shot was fired by an old man who pulled the trigger and missed his wife when he was
threatening her with a shotgun, as per his usual behavior, which they both thought was
unloaded.
- The gun had been loaded by Ronald Opus, who was the son of the couple, with the hope that
his father would shoot it at his wife and kill her.

Applying the Law

Attempted Suicide
As per the law, a person who attempts to kill himself commits an offense. In this case, Ronald tried
to commit suicide but was killed by a bullet from a shotgun instead on his way down. If the shotgun
had never been fired, he would have been caught by the safety net on the 8th floor and would not
have died. He would have thus only attempted to commit suicide for which he would have been
charged with a misdemeanor. However, that is not how it happened. He was killed before dropping
onto the safety net. He can thus not be charged with the offense of attempted suicide.
Murder
The Old Man:
As per the law in this case, a person is guilty of murder if they had malice aforethought at the time
of committing the offense. Malice aforethought is established if it is proved that the person

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intended to cause the death of or do grievous harm to any person, whether that person is the person
actually killed or not. To hold the old man guilty of murder, it must be proved that he had malice
aforethought. It must be proved that he either intended to kill Ronald or that he intended to kill his
wife but killed Ronald instead.
From the facts of the case, the old man did not intend to kill Ronald. He was not even aware that
Ronald had jumped of the ten-story building. The old man also did not intend to kill his wife. Him
threatening his wife with the shotgun was just a habit of his when angry. He never intended to kill
his wife as he usually kept the shotgun unloaded and thought that that was the case in this situation
as well. Since he did not intend to kill either his wife or Ronald, he lacked the requisite malice
aforethought to be charged with the offense of murder.
Ronald Opus:
Ronald intended for his mother to be killed by his father when he loaded the shotgun. He knew of
his father’s habit of threatening his mother with the unloaded shotgun and it he therefore knew that
should he load the gun, it was likely that his father would shoot and kill his mother. In this case, it
not his mother that was the victim of his malicious actions, but rather himself. The law provides
that if a person intends to kill A but kills B instead, they are guilty of murder. Ronald intended for
his mother to be killed, but instead, he is the one who was killed. If a person causes their own
death, it is not termed as murder, but as suicide. Therefore, Ronald cannot be said to have
committed his own murder. He was the author of his own suicide.
Legal Conclusion
Based on the above reasons, this was a bizarre case of suicide. It is not an offense to commit suicide
as per the law in this case, besides, if someone successfully commits suicide, they are dead and
thus cannot be charged postpartum! It is therefore our decision that in this case, no one will be
charged for the death Ronal Opus. He was the architect of his own death.

Topic 3: The Common Law Case Technique

Stare Decisis

Stare Decisis is a Latin term that translates to “let the decision stand”. It gives rise to the doctrine
of precedent. The idea here is that if a rule of law has been settled from previous decisions, it must

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be followed. This doctrine applies in situations where departing from an already established rule
of law would have the effect of unsettling matters that had been previously settled.

However, not everything that is part of a Court’s judgment forms precedent. A judge is only bound
to follow precedent if there exist many relevant factual similarities between the previous case and
the case at hand and if the previous case was determined based on the underlying rule of law.

The use of precedents has many advantages. For instance; it leads to consistency and predictability
which is helpful for future litigants, it leads to the creation of new precedent that step in where
statutes are silent, and the flexibility it offers allows for Courts to make decisions that are more in
line with the changing times.

The use of precedents also has disadvantages for instance; even though the use of precedence offers
some level of certainty there is still some degree of uncertainty involved since the ultimate decision
will be known at the final judgment, it requires the Court to base a current decision before it on
the facts of a previous case which might lead to unfair decisions especially in criminal matters, it
can be rigid in that it requires a higher Court than that that set the existing precedent to set a new
precedent, and the process of working out what exactly is the ratio decidendi and differentiating it
from the obiter dictum might be difficult.

Ratio Decidendi

Ratio Decidendi is a Latin term that translates to “the rationale of the decision”. In the legal sense,
ratio decidendi refers to the legal, social, political or moral reasons on which a Court’s decision is
made. As stated, it is necessary for the ratio decidendi in a case to be discernable for it to be used
as precedent. The difficulty that arises therefore is that of determining in a given case what exactly
the ratio decidendi was. It is up to the future judge to deduct what the ratio decidendi of a previous
case was.

Narrow Ratio

A narrow ratio is simply a narrow rule of law, one that is limited. Therefore, it will only apply in
a particular set of circumstances. In a situation where the facts of the future case somewhat vary
from those of the precedent case, the future Court will not be bound by the precedent. Narrow

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ration is therefore meant to be applied in a very limited manner and is only binding in fact specific
cases.

Broad Ratio

A broad ratio is a broad rule of law, one that is general and wide in its application. Here, the
decision reached in the precedent case was based on a very broad and generalized rule of law such
that it can apply to multiple cases with varying facts.

Obiter Dictum

Obiter Dictum is a Latin term that translates to “by the way”. In the legal sense, obiter dictum is
anything else that makes up the part of the judgment but is not in itself the reason for the decision
reached. Obiter dictum has no force of law because it is not essential to the decision reached and
may at times simply be answers to hypothetical questions that arise. At most, it may be used as
persuasive authority when making future decisions but with no binding effects.
An Illustration on the Use of Precedents
Previously in lecture 3, we had discussed precedents and illustrated how precedents work through
the development of the tort of negligence. We shall now further discuss how precedents apply by
discussing various African cases on the question of the validity of customary marriages. In your
second year in the University, you will undergo a course on Evidence Law and one of the things
you will learn is that a Court cannot compel a person to give evidence against his wife or her
husband. Most of the cases we shall discuss now are on whether this principle applies to spouses
in a customary marriage. If a Court decides that customary marriages are not valid, then the
principle will not apply to such marriages. It is important to note that these cases were decided
when Kenya, Uganda and Tanzania had yet to attain independence. During those times, customary
marriages were viewed as immoral and uncivilised and thus not as real marriages.
- R v. Amkeyo [1917] 67 E.A.R.L. 14

The Accused in this case was charged and convicted for the crime of being in possession of stolen
property under the Stock and Product Theft Ordinance, 1963. His conviction was based on his
wife’s testimony for the Prosecution in which she claimed that she had seen him holding the stolen
property which he had come home with and proceeded to hide.

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The Accused raised a question to the Court as to the admissibility of his wife’s evidence.
According to Section 122 of the Indian Evidence Act, communications made between a husband
and his wife were privileged and thus not admissible in Court as evidence. The Accused relied on
this provision to object to the admissibility of his wife’s testimony.
Hamilton CJ held that the provision did not apply in this case because the Accused’s marriage,
being a customary marriage, did not fit the idea of a civilised marriage. Since the marriage involved
the paying of bride price, the Court considered the wife to not being a free contracting person to
the marriage and she was treated as a chattel since bride price had been paid. Justice Hamilton
dismissed customary marriages as being mere “wife purchase”. The fact that the marriage was also
a polygamous marriage led Justice Hamilton to conclude that it was implicitly repugnant to
conscience and morality. He stated as follows:
“In my opinion, the use of the word ‘marriage’ to describe the relationship entered into by
an African native with a woman of his tribe according to tribal custom is a misnomer which
has led in the past to a considerable confusion of ideas…The elements of a so-called
marriage by native custom differ so materially from the ordinary accepted idea of what
constitutes a civilized form of marriage that it is difficult to compare the two…I do not
think that it can be said that a native custom (marriage) approximates in any way to the
legal ideas of marriage.”
Since the marriage was held to be invalid, the Court compelled the Accused’s wife to give evidence
against him which was considered admissible.
This case created the precedent that customary marriages were invalid. It also created the precedent
that wives married under African customary law were competent witnesses and any
communications made between parties of such a marriage were admissible in Court. The
protection accorded by the law with regard to privileged communication only extended to what
the colonialists considered as civilised marriages (religious and civil marriages) and did not extend
to customary marriages which were considered to not be valid marriages.

- Robin v. Rex 91929-30) 12 KLR 134

Robin, the Appellant, had been accused and convicted of murder based on the testimony of his
wife. The Appellant based his appeal on the grounds that his wife was not a competent witness on
the basis of their marriage and as such, her testimony was not admissible. The appellate Court held
that they were bound by the case of R v. Amkeyo and used the case as authority to hold that the

16
evidence of a wife by native custom against her husband was admissible in Court. The appellate
Court hearing the appeal accepted the finding of the trial Court that the woman was not in fact the
wife of the Appellant. Since their union was through customary law, the appellate Court affirmed
the holding of the trial Court that it was not a valid marriage.
- R v. Mwakio (1932) 14 KLR 138
The Accused was convicted based on evidence given by one of his three wives. The trial Court
stated that there was no reason to depart from the opinion expressed in the case of R v. Robin and
therefore held that the whole of the evidence given by a wife by native custom, including
communications made by her husband, was admissible against her husband, as customary
marriages were not valid. The Judge in reaching this decision stated as follows:
“It is unfortunate that the word ‘wife’ and ‘marriage’ have been applied in this connection.
If only the woman party had been described as a concubine or something of the sort, the
question could never have arisen.”
- R v Toya s/o Mamure [1937] 14 KLR

The Appellant had been convicted of murder based on the testimony of one of his wives. He
appealed his conviction on the ground that his wife was not a competent witness and her testimony
could not be admissible against him. The decision and opinion expressed in R v. Robin was used
as authority by appellate Court to hold that the Accused’s wife’s testimony was admissible since
theirs was a customary marriage not protected under the Indian Evidence Act in force in Kenya at
the time.
- R v Mwange s/o Mulebi

The Appellant was convicted based on the testimony of one of his two wives. The question of
whether his wife’s testimony was admissible against him arose when he appealed. The appellate
Court followed the decision in R v. Robin and held that a communication made by the Appellant
to one of his two wives by native custom was not privileged under S. 122 of the Indian Evidence
Act as their marriage, being a customary marriage, was not valid.
- Lenson Ambiridwile s/o Mafulabila v R

The wife of the Appellant by native custom gave evidence of communications made to her by her
husband. The appellate Court did not, however, find it necessary to come to any conclusion as to
the admissibility of her evidence since there was other admissible evidence by a third party of such

17
communications. The appellate Court however referred to the previous cases on the admissibility
of communications between spouses in a customary marriage and stated as follows:
“It may be necessary at some time for this court or another tribunal to review all the
decisions cited above and to consider their real effect, but we do not consider it necessary
or advisable to do so in the present appeal. For one thing, we have not had the advantage
of any argument on behalf of the Appellant, who was either present nor represented, though
we are indebted to the learned acting Attorney-General for his assistance in referring us
to the relevant decisions on the point.”
- Abdulrahman Bin Mohamed and another v R [1963] 1 EA 188

On the night of 4th July, 1962, a shopkeeper named Mohamed Bin Salum was murdered by the two
Appellants. The Appellants were subsequently convicted for Mohamed Bin Salum’s murder at a
joint trial. The 1st Appellant had been convicted based on the testimony of his wife, Fatuma Binti
Yusuf, who had testified for the Prosecution giving evidence as to her marriage to him. At the trial,
the 1st Appellant had objected to the admissibility of her evidence against him on the basis that
they were married and she was thus not a competent witness.
The trial Judge held that Fatuma was the wife of the 1st Appellant merely by native Makonde
custom, and since such marriages were not considered to be valid, she was a competent witness
for the Prosecution against the 1st Appellant. In reaching this decision, the trial Judge stated as
follows:
“I find the witness is the wife of the 1st Accused according to the Makonde custom. The
marriage was arranged by Natukula, the headman of the Makondes. She was asked and
agreed to marry the 1st Accused. The 1st Accused paid Shs.200 for her which was paid
through her father to her former husband to release her. It is a monogamous marriage in
the sense that Makondes have only one wife at a time, but it is impermanent in the sense
that either husband or wife can buy their release at any time. Religion does not enter into
such a union. There was no ceremony. It is not a Muslim marriage…In my view it is merely
incidental in this Makonde customary marriage that the union is temporarily monogamous
and the woman gave her consent. In my opinion the essence of the union is its temporary
nature. By payment of money the husband can buy one wife after another or the wife can
secure release. This only differs from polygamy in that the husband does not possess the

18
 different women at the same time. The potential impermanency of such a union cannot
create the mutual trust and confidence which exists in civilized marriages.”
The trial Judge followed the decision reached in the case of R v. Amkeyo by which he considered
to be bound.
The 1st Appellant appealed to the conviction raising the question of whether his wife was a
competent witness for the Prosecution. Sir Donald Sinclair, P., the Judge hearing the appeal,
considered the trial judge’s assertions as well as the previous cases which had dealt with the
question of the admissibility of communications between spouses in a customary marriage. The
appellate Court hearing the 1st Appellant’s appeal had previously dealt with this question in the
case of R v. Mwakio s/o Asani and R v. Toya s/o Mamure and in both cases it had held that such
communications were admissible. Sir Donald Sinclair considered this and stated that:
“In criminal cases, this Court is bound by its own decisions unless the Court is of the
opinion that to follow the earlier decision which is considered to be erroneous would be
supporting an improper conviction...We are not prepared to differ from those earlier
decisions. In our view, they should be followed in determining whether one party to a
marriage contracted according to native law or custom is a competent witness for the
prosecution.”
The appellate Court therefore held that Fatuma was a competent witness for the prosecution and
dismissed the appeals.
- Alai v. Uganda (1967) EA 596
The Accused, Alai, was charged with the offense of adultery. His defence was that he was not
guilty of adultery because the woman that he had had sexual relations with was not a wife as
defined by the English law or the Penal Code. This argument was based on the precedent set in R
v. Amkeyo that customary marriages were not valid and women married under such marriages
were not wives. The Court disagreed with him. Sir Udo Udoma CJ stated as follows:
“In my opinion the views expressed by the learned Chief Magistrate are both extraordinary
and dangerous having regard to the situation and the social structure of Uganda and the
different and complete forms of marriage recognized by the law of Uganda…The statement
“any married woman” under S. 105A of the Penal Code means any woman who is married
to any man irrespective of the form of such marriage; provided that such marriage has

19
 been conducted in one of the forms recognized by the people of Uganda, including
marriages according to the custom of the people.”
The Court therefore departed from the precedent set in R v. Amkeyo and set a new precedent that
customary marriages were valid and legal as long as they were entered into following valid
customs of the people. It is important to note that this case was decided in the post-colonial era.
From reviewing all these cases we are now able to better understand how precedent works in terms
of its binding effect and how precedent can be overturned and changed. With regard to this specific
matter, it is clear that the precedent was changed so as to elevate the position of African customs
which the colonialists had previously suppressed. Precedent can thus be overturned in a situation
where it is repugnant to justice.

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Lecture 4: Statutes and Statutory Interpretation

Statutory interpretation connotes the act or the process through which courts, in trying to
understand a piece of legislation, confer a particular meaning to a word or phrase used in the
legislation. Every law is made for given reasons or to meet certain objectives Thus, whenever the
Court is faced with a question on statutory interpretation, it makes certain presumptions as to the
intention, reasons and purposes of why the law was enacted by Parliament.
The primary presumptions are that the text, as used within the Act, is the pre-eminent suggestion
of this intention. It is then presumed that the plain meaning of the text is to be adhered to, unless
outweighed by other factors. The ‘plain meaning’ is the grammatical meaning where it is clear.
Where it is ambiguous or semantically obscure, this must first be clarified by the courts through
the process of statutory interpretation. The court performs its functions in interpreting the law.
this functions were summarized in the case Duport Steels Ltd V. Sirs (1980) ALL ER 529,55.
The House of Lords emphasized the need for courts to be even handed in interpreting statutes.
Where the words of the statute are plain and unambiguous, the Court ought to give effect to that
plain meaning. Lord Diplock said:
“My Lords, at a time when more and more cases involve the application of legislation
which gives effect to policies that are the subject of bitter public and parliamentary
controversy, it cannot be too strongly emphasized that the British constitution, though
largely unwritten, is firmly based upon the separation of powers; Parliament makes the
laws, the judiciary interpret them. When Parliament legislates to remedy what the majority
of its members at the time perceive to be a defect or a lacuna in the existing law (whether
it be the written law enacted by existing statutes or the unwritten common law as it has
been expounded by the judges in decided cases), the role of the judiciary is confined to
ascertaining from the words that Parliament has approved as expressing its intention what
that intention was, and to giving effect to it. Where the meaning of the statutory words is
plain and unambiguous it is not for the judges to invent fancied ambiguities as an excuse
for failing to give effect to its plain meaning because they themselves consider that the
consequences of doing so would be inexpedient, or even unjust or immoral. In controversial
matters such as are involved in industrial relations there is room for differences of opinion
as to what is expedient, what is just and what is morally justifiable. Under our constitution
it is Parliament’s opinion on these matters that is paramount.”
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A statute passed to remedy what is perceived by Parliament to be a defect in the existing law may
in actual operation turn out to have injurious consequences that Parliament did not anticipate at
the time the statute was passed; if it had, it would have made some provision in the Act in order to
prevent them. But if this be the case it is for Parliament, not for the judiciary, to decide whether
any changes should be made to the law as stated in the Acts. It endangers continued public
confidence in the political impartiality of the judiciary, which is essential to the continuance of the
rule of law if judges, under the guise of interpretation, provide their own preferred amendments to
statutes which experience of their operation has shown to have had consequences that members of
the court before whom the matter comes consider to be injurious to the public interest. The
legitimate questions for a judge in his role as interpreter of the enacted law are: ‘How has
Parliament, by the words that it has used in the statute to express its intentions, defined the category
of acts that are entitled to the immunity? Do the acts done in this particular case fall within that
description?”
Lord Scarman said:
“If Parliament says one thing but means another, it is not, under the historic principles of
the common law, for the courts to correct it. We are to be governed not by Parliament’s
intentions but by Parliament’s enactments’ and ‘in the field of statute law the judge must
be obedient to the will of Parliament as expressed in its enactments. In this field Parliament
makes, and un-makes, the law: the judge’s duty is to interpret and to apply the law, not to
change it to meet the judge’s idea of what justice requires.”
Although the court has limited discretion during interpretation this does not amount to freedom to
modify the law while applying it. It has been supposed that the main objective for interpretation
of statutes by the courts should be to uncover the underlying intention for its enactment.
Courts have adopted several approaches to interpretation of statutes. They include the logical,
social policy and the free intuition approaches.

The Relationship between Common Law and Statute

Although some legal systems including the Kenyan legal system are referred to as common law
systems, legislation created by parliament occupies the center of the legal world. A historical
perspective of these two pillars of the legal order provides a starting point for understanding of the
manner in which the courts handle statutes.

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Historically the primary source of law within England, from where the common law legal system
originated, was unwritten law (common law). Written law is seen as a subsequent development
used to strengthen, interpret and amend common law. With the development of the doctrine of
separation of powers the judicial and legislative roles have been well defined now. Parliament, is
considered the supreme law maker, hence, legislation has taken a place of importance and
developed as a major source of law.
This importance of parliament and the primary status of its legislative statements was consolidate
din the political and jurisprudential traditions arising from the works of Thomas Hobbes, Jeremy
Bentham, John Austin and Dicey, works which were generally characterized by the proposition
that written law is the supreme law. The effect of the concept of supremacy of the Parliament was
increasingly acknowledged by the common law courts consequently legislation superseded all
previous law including common law.

The Structure of Statutory Rules

Usually, statutes contain preambles, enacting statement, the title, a purpose provision,
commencement and duration provisions, headings and marginal notes, application provisions,
interpretation sections and schedules. All these provisions are useful in statutory interpretation as
they may point out to the intention of parliament. Generally, all these components arranged and
divided into parts, subparts, section, subsections and schedules.

Ascertaining the Intention of Parliament

The court often justifies statutory interpretation on trying to ascertain the intention of the
parliament. Often, no clear intention of the parliament can be perceived. The courts employs both
internal/statutory and external/non-statutory aids.
1. Statutory Aids
The provisions contained in a statute useful in statutory interpretation. Where certain words are
conferred a technical meaning in the statute different from its colloquial meaning the Court will
consider the meaning given under the statute first. Judges often find guidance to interpretation in
other words within the context of the statute. For example, it is commonly stated that an act should
be interpreted as a whole. A statute must be read as a whole and other factors, such as the
surrounding words, the subject matter of the relevant part of the Act, and the entire scheme of the

23
Act may sometimes call for a different interpretation. The use of an interpretation section can
greatly reduce the scope for ambiguity. The purpose provision of the Act is a key aid to
interpretation. If possible, every provision in the Act should be interpreted consistently with the
purpose provision. The pool of sources that the courts will draw on in interpreting a statute points
to the need to ensure that the Act has internal coherence, and a clear purpose or policy objective
that is adequately reflected in the provisions of the Act and any explanatory material.
As Viscount Simonds stated in Attorney-General v. Prince Ernest Augustus of Hanover
(1957) AC 436:
“For words, and particularly general words, cannot be read in isolation: their colour and
content are derived from their context. So it is that I conceive it to be my right and duty to
examine every word of a statute in its context, and I use ‘context’ in its widest sense, which
I have already indicated as including not only other enacting provisions of the same statute,
but its preamble, the existing state of the law, other statutes in pari materia, and the
mischief which I can, by those and other legitimate means, discern the statute was intended
to remedy.’ However, the guiding principles of interpretation and exposition of statutes are
stated in so many ways that ‘support of high authority may be found for general and
apparently irreconcilable propositions.”
A statute must be read as a whole and other factors, such as the surrounding words, the subject
matter of the relevant part of the Act, and the overall scheme of the Act may sometimes call for a
different interpretation. The use of an interpretation section can greatly reduce the scope for
ambiguity. The purpose provision of the Act is a key aid to interpretation. If possible, every
provision in the Act should be interpreted consistently with the purpose provision. The large pool
of sources that the courts will draw on in interpreting an Act highlights the need to ensure that the
Act has internal coherence, and a clear purpose or policy objective that is adequately reflected in
the provisions of the Act and any explanatory material.
Thus in order to understand the meaning of a word or a phrase, it may well be helpful to look at
the broader context of the statute which may shed light on the particular word s in issue. Many a
times also a court may have to look out of the context of a statute or provisions it may be faced
with interpreting. This means that they look at some other things.

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2. Non-Statutory Aids
These are the rules developed by the courts to help in the interpretation of statutes. These rules
take different approaches to interpretation of a legislation. The court is not limited to the use a
particular rule, therefore a judge may choose one rule, while another judge may prefer a different
rule. These rules can therefore result in diverse decisions. They include: -
➢ The Plain Meaning Rule

This rule is also known as the “literal rule”. Under this rule, it is required that words in the
legislation must be given their plain, ordinary or literal meaning. The court’s main aim is to
ascertain the intention of Parliament as expressed in the words used.
In Whitely v Chappell 1868, L.R. 4; QB 147 the appellant casted a vote in the name of one J.
Marson, a person entitled to vote at an election of guardians, for the township of Bradford. it was
proved that the deceased was duly entitled to vote in that election, but that he had died before the
election. The appellant delivered to the person appointed to collect voting papers a voting paper
apparently duly signed by Mr. J. Marson. The issue for determination by the Court was whether
the appellant was rightfully convicted. The court found the appellant not guilty of personating. The
court took the view that the phrase ‘any person entitled to vote’ disentitled a dead person from
voting.
Lush J. stated that
“I do not think we can, without straining them, bring the case within the words of the
enactment. The legislature has not used the words wide enough to make the personation of
a dead person an offence. The words “A person entitled to vote” can only mean, without a
forced construction, a personation takes place in the present case. Therefore, I feel bound
to say that the offence had not been committed. “
Hannen J. observed that
“I regret the we are obliged to reach the conclusion that the offence charged was not
proved, but it would be wrong to strain words to meet the justice of the present case,
because might take a precedent and lead to dangerous consequences in other cases. “
➢ The Golden Rule

This rule requires that where the words used in a statute are ambiguous, the court should construe
the words in such manner as to avoid absurdity. Therefore, if words or phrases in a statute result

25
in an absurd meaning when applied literally, the court will assume that parliament did not intend
the absurdity and therefore interpret the statute to give the meaning intended by parliament.
Other than avoiding an absurd interpretation, in the wider sense, the rule also calls for judges to
modify the interpretation of words in order to avoid the occurrence of a repugnant situation as
illustrated in the case of Re Sigsworth [1935] Ch 89. Section 46 of the Administration of Estates
Act 1925 stated that where a person dies intestate leaving children but no spouse, the estate passes
to the children. The defendant had murdered his mother, who did not have a will, and he stood to
inherit her estate as next of kin by being her “issue”. The court applied the golden rule and held
that the “issue” would not be entitled to inherit where they had killed the deceased.
➢ The Mischief Rule

Under this rule the court is to ascertain the intention of parliament by determining the “mischief
and defect” that the statute in question has set out to remedy, and to determine what ruling would
effectively implement this remedy. The question that the court should ask is therefore “what
mischief did the previous law have that Parliament is seeking to remedy in passing the law that is
now being reviewed by the Court?”
The rule was first set out in the Heydon’s Case [1584] 76 ER 637, and allows the Court to look
at the state of the former law in order to discover the mischief in it which the present law was
designed to remedy. The Court, in an action to determine the validity of a lease, formulated the
Mischief Rule and in applying it required Courts to ascertain and consider the following -
1. What was the Common Law before the making of the Act?
2. What was the mischief and defect for which Common Law did not provide?
3. What remedy did the parliament resolve and appoint to cure the mischief in the Common
Law?
4. What is the true reason of the remedy?
The ruling in this case required Courts to make such construction and interpretation as shall
suppress the mischief and at the same time advance the remedy intended by parliament.

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Lecture 5: Specific Guides to Construction

These are rules of construction that are used by Courts to interpret the meaning of statutes. They
offer some form of common sense guidance that helps Courts interpret statutes while still
respecting the intention of the legislative body behind the enactment of the statute. These rules are
distinct from those of statutory interpretation as they are more case specific and are used to
determine the applicability of general law to a specific case.

1. Ejusdem Generis

Ejusdem Generis is a Latin term that translates to “of the same class or kind”. It is applied in
situations where a statute has been loosely written. This rule requires that where general words
follow specific words, the general words be construed as being limited to words that are similar in
kind to the specific words.

This rule applies in situations where:

1. the statute in question contains a list of specific words;

2. the subject of this list of words constitutes a specific class or category;
3. the listed words do not exhaust the class or category;
4. the general words follow the list of specific words; and
5. there exists no indication that the legislative body has a different intention when drafting
the statute.

This rule is limited to situations where general words are following specific words that fall within
a specific class. Words can fall into a variety of classes, therefore, in identifying the particular
class that is relevant, one must look at the objective of the statute. The rationale behind this rule is
that if the legislative body had intended that general words be used in a manner that was not
restricted, it would not have gone to the extent to list specific words.

2. Noscitur a Sociis

Noscitur a Sociis is a Latin term that translates to “known from associates” or “known by the
company it keeps”. This rule requires that where unclear or doubtful words exist, they be
ascertained by referring to the meaning of words that are associated with it. Basically, where

27
doubtful words exist, one is to gather their meaning from the context in which the words are used,
that is, the words and terms that surround it.

This rule applies where a statute contains a word or a phrase that naturally has two or more
meanings. This intended meaning of this word or phrase will thus be deducted by looking at the
other words coupled with it so as to determine what the legislative body’s intention was in choosing
the specific word/phrase. In this way, the word becomes less general in its meaning and more
specific.

3. Expressio Unius est Exclusio Alterius

Expressio Unius est Exclusio Alterius is a Latin phrase that translates to “the express mention of
one thing is the exclusion of another”. This rule requires that where specific words are used without
being followed by general words, the statute be interpreted to apply only to the specific words that
have been mentioned. Basically, where a statute expressly mentions one thing, the implication is
that it does so to the exclusion of all other things.

The basis of this rule is that if the legislative body had intended to include a specific thing in the
legislation it made, it would have referred to that specific thing expressly. Therefore, the argument
is that the exclusion of that thing from the ambit of the legislation is that the legislative body
purposefully/deliberately excluded it. The exclusion is implied. If the legislation mentions a list of
things that fall within the same class but fails to mention other things that fall within the same
class, they are excluded.

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Lecture 6: Judgments

Judgments are given by Courts and that they are the Court’s decision regarding the rights and
liabilities of the parties before it in a legal proceeding. A Court’s judgment outlines the reasons
why the judge has decided to give a specific Court order. There are therefore two parts of what
makes a judgment; the final Court Order and the reasons for the decision.

Judgments are in written form. Typically, a judgment will contain; the facts of the case, the legal
issues arising, the arguments given by all parties, the legal reasoning of the judge(s), the Court’s
ruling and a declaration of the successful party together with the Court’s order. Judgments may at
times also include comments and arguments by the judge(s) on legal points that are not entirely
relevant based on the facts of the case (obiter dicta).

It is important for judges to give reasons for their decisions for purposes of judicial accountability.
While giving their reasons for a particular ruling, judges usually indicate the arguments and cases
cited by the parties that the judges found persuasive or unpersuasive and why. This helps the parties
understand why they were able to succeed or why they were not able to succeed. It also creates a
sense of predictability for future litigants in that they can to some extent foresee how a Court is
likely to rule if they were to bring a similar matter before the Court. Once a judgment is delivered,
the Court’s duty and authority in the matter comes to an end. The Court becomes functus officio
and can therefore not reopen the case.

Types of Judgments

1. Final Judgments.
These are judgments given after the hearing of the evidence of all parties involved to finally
determine the issues that are in dispute.
2. Consent Judgments.

These are judgments that apply in situations where parties agree on a settlement that has been
authorized by a judge. Such judgments cannot be appealed since the understating is that both
parties agreed to reach the settlement. However, the agreement between the parties can be set
aside if it is proved that there was mistake, undue influence, misrepresentation, illegality or
duress involved.

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3. Declaratory Judgments.
These are judgments that merely determine the rights and liabilities of the parties involved
without requiring the parties to do anything. Such judgments are not enforceable as there is no
remedy being sort.
4. Default/Ex-Parte Judgments.
These are judgments that are entered in situations where one party fails to take action and
therefore the Court enters judgment in the appearing party’s favour. They are not based on
merit. Such judgments are common in situations where Defendants are sent summons but fail
to appear before the Court or to submit a Defence.
5. Interlocutory Judgments.
They are also referred to as “interim or intermediate judgments”. They are temporary
judgments that apply where timely action is required on an issue. Such judgments are not final.
6. Reserved Judgments.
These are judgments that are not given immediately after a trial is concluded. They may be
pronounced days, weeks or even months later.
7. Summary Judgments.
These are judgments that are based on the Court’s interpretation of the pleadings. The party
requesting for summary judgment must prove that there exists no issue to be tried and that the
other party has no defence and needs to justify their claim to the relief.
8. Vacated Judgments.
These are judgments issued by appellate Courts to the effect that the judgment that they were
reviewing is set aside and results in the ordering of a new trial. The idea here is to ensure a just
outcome for all parties involved.

Judicial Reasoning

Judicial reasoning can refer to two things; one, the thought process followed by a judge in reaching
a decision on a matter, and two, the manifestation of that thought process in writing in the form of
a judgment. We have already discussed the essential elements of a judgment. Ideally, based on
these elements, the stages of the judicial reasoning process can be reduced to a form of deductive
reasoning, that is, a syllogism.

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In terms of judicial reasoning, the relevant principles of law are the major premise, the facts of the
case are the minor premise and the conclusion reached is the application of the relevant principles
of law to the facts of the case. In judicial reasoning however, none of the premises are evident
from the beginning. They need to be established first and tailored in such a way that they relate to
each other so as to form a valid syllogism. The Court has to first determine the facts that are
relevant and then determine the law that applies to this set of facts before finally applying the law
to the facts and reaching a decision.

Once the relevant facts have been determined, the Court must then determine the relevant law.
This the primary role of the Court. It is this relevant law that will be applied to the already deduced
relevant facts to come up with the Court’s decision.

A major part of the process of judicial reasoning depends on the Court reviewing and reinterpreting
precedent. This may at times also include the review and reinterpretation of obiter dicta to offer
more guidance. The process of judicial reasoning is thus dominated by the examination of past
authorities. Through its reliance on precedence, judicial reasoning can also be likened to a form of
analogical reasoning.

The legal issues that the Court needs to determine as well as the relevant precedents and their
interpretation are normally identified for the Court by the parties through their
arguments/submissions. This however does not preclude the Court from identifying its own legal
issues for determination. If a judge is persuaded by the argument of a particular party, it is common
for such a judge to fully adopt the party’s argument when writing the judgment by restating it in
his/her own words. However, even if the judge finds the argument very persuasive and in line with
his/her thoughts on the case, the judge must still provide reasons as to why the other party’s
alternative argument failed.

In conclusion, it is not easy to state that judicial reasoning follows a particular method of reasoning.
The fact that judicial decisions should be based on existing law means that judicial reasoning is
based on formalism. The fact that judicial decisions can be arrived upon by relying on precedent
means that judicial reasoning can be based on analogical reasoning. The fact that judicial decisions
have to be based on the situation at hand and on how best to serve the functional needs of society
or ensuring just outcomes means that judicial reasoning is also based on realism. There is no exact

31
way to analyze a case and reach a judicial decision. The process used varies from one judge to
another. It is way more complicated than logical reasoning would suggest.

Judicial Opinion

A judicial opinion is a type of legal opinion that is written by a judge or a bench of judges that
provides the decision reached in a case. Like a judgment, it provides the relevant facts of the case
as well as an analysis of how exactly the particular decision was reached.

1. Majority Opinion.

In a situation where a case is being heard by three or more judges, a majority opinion refers to the
opinion that has been agreed upon by more than half of the bench. It is this opinion that will be the
final decision of the Court explaining the reasons behind the Court’s decision.

2. Dissenting Opinion.

This is an opinion that is written by one or more judges who are not in agreement with the majority
opinion. Such opinions do not lead to the creation of binding precedent. They can however be cited
in future cases but only as persuasive authorities, especially in a situation where a party is arguing
for the overturning of the Court’s holding.

3. Concurring Opinion.

This is an opinion that is written by a judge that agrees with the decision of the majority opinion
but has different reasons for reaching the same decision. This can be because the judge interpreted
the facts differently or is of the opinion that the relevant law in the matter is different from that
used in the majority opinion.

4. Per Curiam Opinion.

This is an opinion rendered by the Court, or just a majority of the Court, where the judges are
acting collectively and anonymously. The particular judges that have reached the decision are not
listed. The dissenting and concurring decisions however, are listed.

5. Advisory Opinion.

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These are opinions that are issued that do not seek to dispose of a particular matter. The purpose
is not to decide the matter at hand and thus they are aimed at providing clarity in a matter as
opposed to a decision.

The Formal Style

This form of statutory interpretation is also referred to as “formalism”. Formalism refers to the
application of a rule of law that is already in existence according to its terms to the facts of a case.
Formalistic interpretation is deductive in nature and follows the structure of a syllogism. The major
premise will be a statement of law, the minor premise will be a statement of fact and the law will
be applied to the facts to come up with a valid holding.

Formalism requires one to look at the plain meaning of the text, in the case of judicial reasoning,
the plain meaning of the words of the statute, without making any inferences or assumptions. If
traditions or customs have to be considered, they should be read to the narrowest extent possible.

The formal style of interpretation is thus a rigid way of interpreting statutes that sticks by traditions
and already existing doctrines. The rationale for this style is that judges are not meant to create the
law and should therefore interpret it strictly. This style leads to consistency, stability and
predictability as all judges will ideally interpret statutes the same way.

However, it does not take into consideration the fact that times change and there is therefore a need
to interpret laws with this in mind so as to be able to reach decisions that solve societal problems
in these new times. Due to its rigidity, this style can be regarded as politically and socially
inadequate as well as cumbersome.

The Grand Style

The grand style of statutory interpretation is also referred to as “realism”. Legal realism determines
what the law is, not by invoking categorical legal principles, but rather by considering the law’s
probable consequences. Legal realism therefore entails balancing the costs and benefits of a legal
outcome. Realism calls for courts to not look at the literal meaning of a statute but rather to
consider what values Parliament intended to protect or serve when drafting the statute.

The grand style of interpretation is thus a more flexible and creative way of interpreting statutes.
It allows for the growth of jurisprudence by incorporating new concepts into already existing

33
precedents. This style calls for judges to look at the particular case in hand and determine it in a
way that ensures justice, even if it means departing from already set precedent or if it means
interpreting statutes more broadly.

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Lecture 7: Presumptions

It is a basic principle of administration of justice that like cases be decided alike. In light of this
proposition numerous presumptions have been developed to lay foundation as to how the Courts
should arrive at their decisions.

Presumption against Change in Common Law

While interpreting statutes, it is assumed that Parliament in making the statute did not intend to
alter Common Law unless there is an express intention to that effect. The reasoning behind this
assumption is that Parliament is sovereign and as such, can alter Common Law whenever it
purports to do so. Therefore, if it is not expressly clear that in the making of a statute Parliament
was intending to alter the Common Law, then it should be assumed that the statute in question
does not make any alteration to Common Law. If a situation arises where there are two alternative
interpretations to a statute, the interpretation that maintains the existing Common Law is the
interpretation that will be the most preferred. This assumption prevents Courts from taking on the
Legislature’s role of making laws.

Presumption that the Statute was not Intended to Affect the Crown

The assumption here is that unless a statute clearly and explicitly contains a statement to the
contrary, the statute is assumed to not apply to the Crown.

Presumption that the Statute was not Intended to Interfere with the Vested Rights of an
Individual

In situations where a sudden change in existing rights would be so unfair to certain individuals in
their particular situation, it is assumed that Parliament did not intend the new statute to affect them
in that respect. The rule is that a statute should not be given a construction that would impair
existing rights as regards person or property unless the language in which it is couched requires
such a construction. The presumption that vested rights are not affected unless the intention of the
legislature is clear applies whether the legislation is retrospective or prospective in operation. A
prospective enactment may be bad if it affects vested rights and does not do so in unambiguous

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terms. This presumption, however, only applies where the legislation is in some way ambiguous
and reasonably susceptible of two constructions.
Presumption against Retrospective Operation
There is a general assumption that statutes will not operate retrospectively. Statutes are construed
as operating only in cases or on facts which come into existence after the statutes were passed
unless a retrospective effect is clearly intended. It is a fundamental rule of English law that no
statute shall be construed to have a retrospective operation unless such a construction appears very
clearly in the terms of the Act, or arises by necessary and distinct implication. Upon this
presumption rests the presumption that the Parliament never intended what is unjust. This helps to
stop people whose conduct was innocent at the time of commission from being convicted by a
backward looking statute and also to stop people whose conduct was guilty at any given time from
being free from blame just because the statute decriminalizes certain conduct.
Presumption that the Statute does not Affect Pending Proceedings
The assumption here is that statutes do not apply to actions which are pending at the time that they
come into force unless the statute explicitly provides that Parliament intended that it should.
Presumption that the Statute was not Intended to be Inconsistent with International Law
The assumption here is that statutes when made are not intended to be inconsistent with legal
obligations that exist under international law. In the case of a conflict between customary
international law and a statute, in most if not all jurisdictions it seems that the latter will usually
prevail. Courts will however strive to give a construction which resolves the conflict. was held,
could only be justified on grounds of international law.
Presumption that Mens Rea is Required in Criminal Cases
For criminal offences, there is an assumption that a mental element is required. In order for a
person to be convicted of a crime, it must be proven that not only did he commit the relevant act
that makes up crime, but that he also committed the crime with a blameworthy state of mind. For
example, for a person to be convicted of murder, it must be proven that he actually intended to end
the life of the deceased.
Presumption Against Ousting Jurisdiction of Court
This is usually done through what is known as an ouster clause. An ouster clause is a provision in
a Statute which excludes certain actions and decisions by administrative bodies from judicial

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review. The court construes a provision which deprives it of the jurisdiction to review decisions
of the decision making bodies and other administrative authorities narrowly.
Presumption of Constitutionality
Parliament is supposed to make laws which are in conformity with the Constitution. The
presumption of constitutionality of a statue or provision occurs when there are two possible
interpretations for a statue, one favoring while the violating, the one that is in favor of the
constitution, is taken as valid. The provision which is unconstitutional should be avoided and when
proved to be unconstitutional, should become void. Until the contrary is proved, a legislation is
presumed to be constitutional. It is a sound principle of constitutional construction that, if possible,
a legislation should receive such a construction as will make it operative and not inoperative.”
Thus the person alleging the unconstitutionality of a statute bears the burden of proof to prove
beyond reasonable doubt that the act is unconstitutional.
Presumption that Persons should not be Penalized except Under Clear Law
Where plain words in a statute are indistinguishable and there are two rational interpretations, the
more lenient one will be applied to an accused. The presumption dictates that there is legal
certainty before persons are sanctioned; so as to give those affected by the new law a chance to
understand the penalties which may be levied against them. This closely relates to the presumption
toward fairness and justice which dictates that it is to be presumed that Parliament intends to further
the ends of justice. Thus, where there are two conflicting constructions of an enactment, the court
will strive to avoid adopting a construction that leads to injustice The rule is particularly important
where the freedom and right to liberty of a person is at stake and where there is a shadow of doubt
the court will construe the wording of the statute in way that favors the liberty of the person.
Presumption in Favor of Strict Construction of Penal Laws
This is the presumption against unclear changes, particularly in criminal law, that if there were
two possible meanings of a word or phrase used in a statute, however unreasonable one of those
meanings be, it was applied favorably to the accused. So too the presumption in favour of strict
construction of penal statutes. If there is a reasonable interpretation which will avoid the penalty
in any particular case, we must adopt that construction. If there are two reasonable constructions,
we must give the more lenient one. That is the settled rule for construction of penal sections.

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Presumption that Acts are of Territorial Application
This is the presumption against extraterritoriality which is to the effect that courts should apply
statutes within their jurisdiction. The traditional understanding of this presumption is that the
Statute should apply only to conduct that occurs within the jurisdiction of the Court, unless a
contrary intent appears, regardless of whether that conduct causes effects in the State considered.
At present, courts distinguish between these two elements, that is, conduct and effects. More
emphasis is placed on where the effects of the conduct of the person before Court took place.
Presumption of Innocence until Proven Guilty
Most criminal justice systems of the world recognize this presumption. International legal
instruments such as the Universal Declaration of Human Rights of universal application state that
an accused person has a guaranteed right of innocence until proven guilty. This presumption is to
the effect that where an accused person brought before court the prosecution should prove the case
against the accused beyond any reasonable doubt. The prosecution has to prove intent, that is, mens
rea on the part of the accused unless the crime is one of strict liability and it must also prove the
criminal act itself, that is. The actus reus. Where the prosecution fails to prove its case beyond
reasonable doubt the Court should acquit the accused.

©Benjamin Musau

Friday, November 03, 2023

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