INTRODUCTION TO LAW 24
This is law made by parliament directly in exercise of the legislative power conferred upon it by
the Constitution. The product of parliaments legis
7. It is a superior source of law in that only the Constitution prevails over it.
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
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INTRODUCTION TO LAW 20
This chapter has shown its importance in the industry first by way of hierarchy of laws. It is this
particular hierarchy that is used when there is a conflict of l
3. EQUITY IS EQUALITY (EQUALITY IS EQUITY)
In general, the maxim will be applied whenever property is to be distributed between rival
claimants and there is no other basis for division.
For example, husband and wife who operate a joint bank account; each
might appear. Equity will therefore not grant specific performance for a gratuitous promise.
9. EQUITY WILL NOT SUFFER A WRONG TO BE WITHOUT A REMEDY
Ibis jus ibi remedium: This means that if there is a wrong, there is a remedy for it. He who seeks
a. Parliament delegates law-making power to specific persons and bodies e.g. government
ministries, local authorities, professional bodies, chief justice e.t.c.
b. The Enabling or Parent Act prescribes the scope and procedure of
practice and precedents of the court administering equity jurisdiction.
In the technical senseequity refers to a body of rules and some authors have defined equity as
that which is not the common law. They distinguish equity from the common law. It is reg
A court of law on application by a party declares delegated legislation substantively ultra vires
if satisfied that:
a. The delegate exceeded the powers prescribed by the Enabling of Parent Act.
b. The delegate exercised his powers for a purpose other tha
1. Right to life - Section 71(1)
2. Right to personal liberty - Section 72 (1)
3. Right to property - Section 75 (1)
4. Right to protection of law - Section 77
Freedoms Guaranteed by the Constitution
1. Freedom of
These courts standardized and universalized customs and applied them in dispute resolution. At
first, common law was a complete system of rules both criminal and civil.
The development of the common law is traceable to the Norman Conquest of the Iberian
is used to describe certain Statutes enacted by the UK parliament to regulate the inhabitants of
These Statutes are recognized as a source of Law of Kenya by Section 3 (1) (c) of the Judicature
Act. However, there application is restricted i
This refers to the ability of the accountant to do his work without following any instructions
from the client or any other person for any reason.
The independence ensures that the accountant will be truthful and will carry ou
Chancellor was not legally trained.
It was not until the beginning of the 16
century that the Lord Chancellors offices were held by
legally trained persons and the decisions they made had the force of Law.
These decisions are what are referred to as th
a specific group of persons.
The bill may be government or private members.
LAW MAKING PROCEDURE
The procedure of law-making in Kenya is contained in the Constitution and the National Assembly
Standing Orders. A bill passes through various stages before e
5. Equity regards as done that which ought to be done
6. Equity imputes an intent to fulfil an obligation
7. Equity acts in personam
8. Equity will not assist a volunteer (Equity favours a purchaser for value without notice)
9. Equity will not suffer a wr
Speed:Law-making by government Ministers, Professional bodies and other organs is
faster and therefore responsible to urgent needs.
Flexibility:The procedure of Law-making by delegates e.g. Government Ministers is
not tied to rigid provisions of the
that its enormous growth has made it impossible for parliament to watch over it. Neither
parliament nor courts of law can effectively control delegated legislation by reason of
their inherent and operational weakness.
publicity: Compared to
1. Local Authorities make by-laws applicable within their administrative area
2. Government ministries, professional bodies and others make rules, orders, regulations,
CHARACTERISTICS OF DELEGATED LEGISLATION
1. All delegated legislation is
consistent with the Constitution. It is the most important source of law.
THE LAW MAKING PROCESS
Under Sec 30 of the Constitution, the legislative power of the republic is vested in the parliament
of Kenya which consists of the president and the National
There were separate writs for different complaints. However:
a. This system did not recognize all possible complaints and many would be plaintiffs
had no access to the courts
b. The writ system encouraged corruption
c. It lengthened the course of
procedures:The Constitution has a special amendment procedure. Under
Section 47 (1) of the Constitution, parliament is empowered to alter the Constitution.
However a Bill seeking to alter the Constitution must be supported by not less than 65
lose not only his security but the total amount paid.
It may be described as that branch of the law of England which was developed by the various
Lord Chancellors courts to supplement the common Law.
It was developed to mitigate the harshness o
Defendants often relied on standard defenses to delay the course of justice. These
defenses were referred to as essoins and included; Being out by floods, being unwell
or being away on a crusade. If sickness was pleaded, the case could be adjourned for
The bill is committed either to a select committee of members or to the entire National
Assembly as a committee for a critical analysis. At this stage, the bill is analysed word
In the case of a select committee, it m
a procedural defect. In Mwangi
(1950) the appellants were
sentenced by the Resident magistrates court in Nairobi for overcharging a haircut contrary to
the defense (Control of Prices) Regulations 1945. Under these regulations
a) Government Bill
This is a Bill mooted by the government which it introduces to the National Assembly National
Assembly for debate and possible enactment to law. All government bills are drafted by the office
of the Attorney General.
a) Developed a set of guiding principles. These were the so-called Maxims
b) Adopted the doctrine of stare decisis.
Equity consists of rules developed by the Lord Chancello
origins of the rules and principles which constitute the law applicable in a country at a given time.
In other words the materials from which rules of law are developed.
Bill: a draft law or legislation
Ultra vires: Latin term wh
, unless otherwise
provided, delegated legislation must be published in the Kenya Gazette before coming
f. Under Section 34 (i) of the Interpretation and General Provisions Act, unless otherwise
provided, delegated legislation must be laid bef
follow the courts directions, to abide by whatever conditions that the court gives for the relief. And
this is most commonly applied in injunctions. The court will normally impose certain conditions for
granting the injunction.
2. HE WHO COMES TO EQUITY M
consult regularly. Statute Law, therefore, is a manifestation of the will of the people.
problems:Statute Law enables society to resolve legal problems
as and when they arise by enacting new statutes or effecting amendments to exist
INTRODUCTION TO LAW 38
the alternative method of sequestrating the defendants property until he obeyed the decree.
These methods can still be used where necessary, but other and more convenient methods are
often available today.
Although the ma
Although Section 30 of the Constitution rests the legislative power of the republic in parliament,
parliament delegates its legislative power to other persons and bodies.
Delegated legislation is also referred to as subsid
contract inter-parties; it is valid between the parties and can be specifically enforced. The tenant
in this case was therefore liable to pay rent in arrears.
6. EQUITY IMPUTES AN INTENT TO FULFILL AN OBLIGATION
If a person is under an obligation to perfo
FUNCTIONS OF PARLIAMENT
1. Controls government spending
2. Critical function
3. Legislative functions
HOW TO MAKE THE LAW MAKING PROCESS EFFECTIVE
1. M.Ps should consult constituents on a regular basis.
2. Subdivision of large constituencies.