Introduction to Law Revision Questions

QUESTION ONE

Question 1

Distinguish the following:

a) Law and Morality, (2 marks)

  1. It is a sense of judgment between rights and wrong by reference certain standards developed by society over time.
  2. It consists of standards of behavior widely used by a society consists of prescriptions of society.
  3. It consists of rules regulating to conduct.
  4. However, morality is not enforceable Non- compliance with morality attracts sanctions of the society.
  5. Rules of law are binding and enforceable and have sanctions in all cases.
  6. Wrongs in society are contraventions of law or law or morality or both However, the law incorporates a significant proportion of morality.
  7. Such morality becomes part of the law. E.g. killing a person is immoral as well as a crime so is theft.
  8. However, certain wrongs in society contravene morality but not the laws e.g. disrespect, failure to provide for parents, failure to rescue a drumming person e.t.c.

b) . Public and Private Law, (2 marks)

Public law

It consists of those fields or branches of law in which the state has a direct interest as the

sovereign.

It is concerned with the constitution and functions of the various organizations of government

including local authorities, their relations with each other and the citizenry e.g. – Criminal law

- Constitutional Law

- Administrative Law

Public Law asserts state sovereignty

Private law

It consists of those branches of law in which the state has no direct interests as the state /

sovereign.

It is concerned with the legal relationships between persons in ordinary transaction e.g.

a) Law of contract

b) Law of property

c) Law if succession

d) Law of marriage

e) Law of torts

c) Substantive Law and Procedural Law, (2 marks)

Substantive law

It consists of the rules themselves as opposed to the procedure on how to apply them.

It defines the rights and duties of parties and prescribes remedies e.g. The Law of torts, succession,

contract, marriage e.t.c.

If defines offenses and prescribed punishment e.g. Penal Code

Procedural law

This is adjectival law. It consists of the steps or guiding principles or rules of practice to be

complied with in the administration of justice or in the application of substantive law

NB: The evidence Act Cap 80 is both substantive and procedural

d) Ratio Decidendi and Obiter Dicta. (2 marks)

Ratio Decidendi

The principle or proposition formulated by the judge is referred to as ratio decidendi (reason for

decision.) ratio decidendi literally means ‘reason for decision.’

It is a principle or proposition of law based on the material facts of the case. It disposes off the

case before the court. It is the binding part in a precedent or earlier decision. It covers a group of

fat situations with those of the instant case as the minimum.

Obiter dicta

These are by the way stateme4tns of law or facts made by a judge in the course of judgment.

They do not dispose off the case before the court. They have no binding force; however they may

be relied upon by advocates in subsequent cases as persuasive authority in subsequent cases.

These statements of obiter dicta strengthen or reinforce the decision of the court.

QUESTION 2

Define the term “Law” and state the main purpose of Law. (6 marks)

Law can be defined as: A body of binding rules of human conduct prescribed by human beings

for the obedience of human beings.

Functions/Purposes of Law

1. It promotes peaceful coexistence/ maintenance of law and order/ prevents marching.

2. It is a standard setting and control mechanism Law sets standards of behaviour, conduct

e.t.c.

3.It protects rights and enforces duties by providing remedies whenever these rights or duties are not honored.

4. Facilitating and affecting private choice. It enables persons to make choice and

gives them legal effect. This is best exemplified by the law of contracts, marriage &

succession.

5. It resolves social conflicts. Since conflicts are conflicts are inevitable, the rule of law

facilitates their resolution by recognizing the conflicts and providing the necessary

resolution mechanism.

6. It controls and structures public power. Rules of law various organs of govt and confer

upon them the powers exercisable by them. The law creates a limited govt. This promotes

good governance, accountability and transparency. It facilitates justice in society.

QUESTION 3

Describe the various branches of civil law. (10 marks)

It is concerned with the rights and duties of parties i.e. individual and corporations as well as

remedies e.g. or branches of civil law include:-

  • Law of contract
  • Law of torts
  • Law of property
  • Law of Marriage
  • Law of succession

QUESTION 4

Write explanatory notes on the following;

  1. Supremacy of the Constitution. (3 marks)

i) SUPREMACY OF THE CONSTITUTION

The supremacy of the constitution as source of law is manifested in various ways:-

1) All other laws derive their validity from the constitution

2) Proclaims its supremacy. Section 3 of the constitution provides inter alia (among other

things) “The constitution is the constitution of the Republic of Kenya and shall lake the

force of law throughout Kenya , if any other law is inconsistent with this constitution,

this constitution will prevail and the other law shall to the extent of its inconsistency be

void”

The phrase “any other law” used in sec 3 of the constitution was interpreted in Okunda and

Another v. R (1970) to mean any other law be it international or national.

In this case, the high court was called upon to determine which law was superior between the

constitution of Kenya and the official secrets Act of the E.A. community. The court was of the view that section 3 places beyond doubt the pre-eminent character of the constitution.

Organs of government: The constitution creates the principle and other organs of government.

The legislature, Executive and the judiciary owe their existence to the constitution. Additionally

the constitution creates other bodies and offices e.g.

The electoral commission

Judicial service commission

Public services commission

Offices of the AG, Auditor General and the commissioner of police are created by the

constitution

2. Amended procedures: The constitution has a special amendment procedure. At the Sec 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% of all the members of parliament

excluding the ex-officio members during the 2nd and 3rd readings.

3. Fundamental rights and freedoms: The constitution of Kenya, guarantees the fundamental

rights and freedoms of the individual Cap 5 of the constitution is devoted to the rights and

freedoms which are exercisable, subject to:-

a. The rights and freedoms of others

b. Public interest

ii) The rule of law (3 marks)

THE RULE OF LAW

The concept of the Rule of Law is a framework developed by Dicey on the basis of the English

Legal system. It is also described as the due process.

According to Dicey, rule of law comprises 3 distinct conceptions namely;

1. Absolute supremacy or predominance of regular law; this means that all acts of the

State are governed by law. It means that a person can only be punished for disobedience

to law and nothing else.

2. Equality before the law; means equal subjection of all persons before the law. It means

that no person is exempted from obeying the law. All classes of persons are subjected

to the same judicial process.

3. The law or the constitution is a consequence and not the source of rights; means

that the law is a manifestation of the will of the people.

iii) Identify the factors that may undermine the rule of law in a country. (4 marks)

Factors Undermining Rule of Law:

1. Excessive power of executive

2. Nondependent judiciary

3. Corruption

4. Selective prosecution

5. Civil unrest

6. Ignorance of law

QUESTION 5

a) Define Statute Law and discuss its advantages. (10 marks)

This is law made by parliament directly in exercise of the legislative power conferred upon it

by the constitution. The product of parliament’s legislative process is an Act of Parliament e.g.

Mining Act.

Section 3(1) (b) of the judicature Act recognizes legislation or statues law as a source of law of

Kenya by the words “All other written laws”. These words encompass:

1. Certain Acts of the UK Parliament applicable in Kenya.

2. Certain Acts of the Indian Parliament applicable in Kenya

3. Acts of the legislative council

4. Acts of the Parliament of Kenya.

Statute law legislation is a principal source of law applicable throughout Kenya. It must be

consistent with the constitution. It is the most important source of law.

Advantages of Statutes Law

1. Democratic: Parliamentary law making is the most democratic legislative process. This

is because parliaments the world over consists of representatives of the people they

consult regularly. Statute Law therefore is a manifestation of the mill 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 principals applicable at different times in

different circumstances. It has capacity to accommodate changes without requiring

amendments.

5. Consistency / Uniformity: Statute Law applies indiscriminating 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.

b) Explain each of the following rules of Statutory Interpretation;

a) Noscitur a sociis, (3 marks)

b) Ejusdem Generis, (3 marks)

c) Mischief Rule. (4 marks)

Noscitur a sociis (3 marks)

This rule literally means that a word or phrase is known by its companions.

It is to the effect that words of doubtful meanings derive their colour and precision from the words

and phrases with which they are associated.

Ejusdem Generis (3 marks)

This rule is applied to interpret words of the same genus and species.

It is to the effect that where general words follow particular words in the statute, the general

words must be interpreted as being limited to the class of persons or things designated by the

particular words.

The rule was explained in R.-v-Edmundson and was applied in Evans-v-Cross to interpret the

provisions of the Road Traffic Act (1930).

Mischief Rule (Rule in Heydons Case (1584) (4 marks)

This is the oldest rule of statutory interpretation. Under this rule, the court examines the statutes

to ascertain the defect it was intended to remedy so as to interpret the statute in such a manner

as to suppress the defect.

The rule was explained by Lord Coke in Heydon’s case (1584). According to the judge, 4 things must be discerned and discussed:

1. What was the common law before the making of the Act

2. What was the mischief and defect for which the law did not provide

3. What remedy has parliament resolved i.e. appointed to cure the disease

4. What is the true reason for the remedy

The judge shall give such construction as shall advance the remedy and suppress the mischief.

The mischief rule was applied in Smith-v-Hughes (1961) to interpret the provisions of the Street

Offences Act 1959.

Under the act, it was a criminal offense for a prostitute to ‘solicit men in a street or public place.’

In this case the accused had tapped on a balcony rail and hissed at men as they passed by

below.

The Court applied the mischief rule and found her guilty of soliciting as the purpose of the act wasto prevent solicitation irrespective of the venue.

The mischief rule was also applied by the Court of Appeal fro Eastern Africa in New great

company of India-v- Gross and Another (1966), to interpret the provisions of the insurance

(“motor vehicles third party risks) Act.

QUESTION 6

Explain 8 sources of law in Kenya. (16 marks)

1. Constitution; This is a body of basic rules and principles by which a society has

resolved to govern itself or regulate its affairs. It contains the agreed content of the

political system and the basic structures of government e.g. Executive, Legislature and

the Judiciary.

2. Legislation or Statute Law; This is law made directly by parliament in exercise of its

legislative power conferred upon it by the constitution.

3. Delegated Legislation; It is also referred to as subordinate, indirect or subsidiary

legislation. It is law made by parliament indirectly. These are by-laws, orders, rules,

regulations or proclamations made by subordinate bodies e.g. local authorities,

professional bodies, government ministers and statutory bodies in exercise of delegated

legislative powers conferred upon them by parliament through an Enabling or Parent

Act.

4. Statutes of General Application; These are certain statutes enacted by the UK

parliament to regulate the conduct of the inhabitants of the UK generally. They are

recognized as a source of law of Kenya by Section 3 of the Judicature Act. Their

application as a source of law is qualified.

5. Common Law; May be described as a branch of the law of England which was

developed by the ancient common law courts from the customs, usages and practices

of the English people. It is an unwritten source of law whose application is qualified by

Section 3(1) (c) of the Judicature Act.

6. Equity; Equity ordinarily means fairness or justice. It is that branch of the law of

England which was developed by the various Lord Chancellors Courts to supplement

the Common Law. It developed to mitigate the harshness of the Common Law. It

application is qualified by Section 3(1) (c) of the Judicature Act.

7. Case Law or Judge Made Law; These are principles or propositions of law made

by judges when deciding cases before them which are applied in subsequent similar

cases. Judges make laws when they formulate or enunciate principles or propositions

of law where none existed or in doubtful situations which are applied in subsequent

similar cases. This source is recognized by Section 3 of the Judicature Act and has

wide application.

8. African Customary Law; African Customary Law is based on customs, usages and

practices of the various ethnic groups of Kenya. These customs and usages generally

lack universality and so is African Customary Law. A custom embodies a principle of

utility or justice. However, not all local customs may be relied upon by courts of law in the

settlement of disputes. A good local custom must be reasonably consistent with written

law and must have been observed openly since time immemorial. It is recognized by

Section 3 (2) of the Judicature Act.

QUESTION 7

a) Identify the disadvantages of case law as a source of law. (6 marks)

DISADVANTAGES OF CASE LAW

1. Rigidity: Strict application of stare decisis renders a legal system inflexible or rigid and

this generally interferes with the development of law.

2. Bulk and complexity: Since stare decisis is based on judicial decisions and many

decisions have been made, it tends to be bulky and there is no index as to which of

these decisions are precedent. Extraction of the ratio decidendi is a complex task.

3. Piecemeal: Law-making by courts of law is neither systematic nor comprehensive in

nature. It is incidental. Principles or propositions of law are made in bits and pieces.

4. Artificiality in law (over-subtlety): when judges in subsequent cases attempt to

distinguish indistinguishable cases, they develop technical distractions or distinctions

without a difference. This makes law artificial and renders the legal system uncertain.

5. Backward learning: Judges or courts are persuaded / urged to decide all cases before

them in a manner similar to past decisions. It is contended that this practice interferes

with the ability of a judge to determine cases uninfluenced by previous decisions.

b) State 4 maxims of equity that developed to supplement the inadequacies of common

law. (6 marks

The Maxims of Equity include:

1. He who seeks equity must do equity

2. He who comes to equity must come with clean hands

3. Equity is equality (Equality is equity)

4. Equity looks to the intent or substance rather than the form

5. Equity looks upon as done that which ought to be done

6. Equity imputes an intent to fulfill an obligation

7. Equity acts in personam

8. Equity will not assist a volunteer (Equity favors a purchaser for value without notice)

9. Equity will not suffer a wrong to be without a remedy (Where there is a wrong there is a

remedy for it) Ibi jus ibi remedium

10. Equity does not act in vain

11. Delay defeats equity

12. Equity aids the vigilant and not the indolent (Vigilantibus non dorminentibus jura

subveniunt)

QUESTION 8

a) Distinguish between the following:

i. Common Law and Equity. (6 marks)

Common Law; May be described as a branch of the law of England which was developed by

the ancient common law courts from the customs, usages and practices of the English people. It

is an unwritten source of law whose application is qualified by Section 3(1) (c) of the Judicature

Act.

Equity; Equity ordinarily means fairness or justice. It is that branch of the law of England which

was developed by the various Lord Chancellors Courts to supplement the Common Law. It

developed to mitigate the harshness of the Common Law. It application is qualified by Section

3(1) (c) of the Judicature Act

ii. Statute Law and Judicial Precedent. (6 marks)

Statutes Law / Legislation / Acts Of Parliament

This is law made by parliament directly in exercise of the legislative power conferred upon it

by the constitution. The product of parliament’s legislative process is an Act of Parliament e.g.

Mining Act.

Sec 3(1) (b) of the judicature Act recognizes legislation or statues law as a source of law of

Kenya by the words “All other written laws”. These words encompass:

1. Certain Acts of the UK Parliament applicable in Kenya.

2. Certain Acts of the Indian Parliament applicable in Kenya

3. Acts of the legislative council

4. Acts of the Parliament of Kenya.

Statute law legislation is a principal source of law applicable throughout Kenya. It must be

consistent with the constitution. It is the most important source of law.

Judicial Precedent (Stare Decisis)

Stare decisis literally means ‘decision stands’. It is a system of administration of justice whereby

previous decisions are relied upon in subsequent similar cases.

It is to the effect that each court in the Judicial Hierarchy is bound by principles established by

decisions of courts above it in the Hierarchy and courts of co-ordinate jurisdiction are bound by

their own previous decisions if the 2 cases have similar material facts.

Case law is only a source of law where the cases have similar legal points. The doctrine of

judicial precedent applies both horizontally and vertically.

b) Explain the discretionary remedies available in equity. (8 marks

a) Prohibitory order: This is an order of the high court restraining a court or tribunal from

proceeding with a meter before it. This order may be granted if the court or tribunal is:

i. Improperly constituted

ii. Disregarding relevant matters

iii. Exceeding its jurisdiction

iv. This order prevents a court or tribunal from exceeding its jurisdiction or ignoring the

rules of natural justice.

b) Certiorari: This is a high court order to a subordinate court tribunal demanding the production

of certified copies of the proceedings and decisions for purposes of quashing the decision.

The order may be granted if a decision is arrived at in total disregard of the rules of natural justice

or in excess of jurisdiction of the tribunal e.t.c.

QUESTION 9

a) In relation to the law of property

i. Enumerate the characteristics of a joint tenancy

It is a situation where property is owned by two or more persons. Joint tenancy is characterized

by the four unities

i. Unity of title- all the person derive titles from the same title

ii. Unity of possession- all the persons are entitled to each and every part of the land I.e.

they have a similar right to use the land

iii. Unity of interest- all the owners hold interests of a similar nature

iv. Unity of time- the interest of the owners must rest at the same time

Joint proprietorship is characterized by the principle of Jus accressendi i.e. the right of survivorship.

It means that when one proprietor or owner dies his interest vests in the survivors. The deceased’s

interest in the property cannot be disposed off by will or intestacy.

At common law if the joint owners or proprietors die together the younger is deemed to have

survived the older.

ii. State the various ways in which a lease agreement may be determined

(a) By Notice

This method is applicable where

(1) The tenancy does not prescribe a date for termination or

(2) Either party intends to terminate the lease before the agreed period. In the case

of periodic tenancy, the length of notice is one half the duration.

The notice must be appropriate and sufficient to manifest intention to terminate the lease. The

notice may be given to the landlord or his agent or through registered post.

The notice must relate to the entire premise demised. The lease determines on the expiration of

the notice.

(b) Expiration (lapse of) or effluxion of time.

All fixed term leases generally terminate upon expiration of such time. Under Section 64 (1) (a) of

the Registered Land Act, a lease determines “where the period of a lease has expired.”

(c) Forfeiture

This is the right of the landlord or lessor, in the event of certain breaches, to re-enter the demised premises and thus prematurely terminate the lease.

The right is only exercisable:

1. Pursuant to a forfeiture clause. Generally, leases contain clause specifying the breaches

for which the landlord may re-enter the premises.

2. Pursuant to statutory, in the absence of an express stipulation.

Under section 56 (1) of the Registered Land Act and Section 111 (g) of the ITPA the right is

exercisable if the lessee:

i. Commits any breach of: or omits to perform an express or implied condition.

ii. Is adjudicated bankrupt

iii. Being a company goes into liquidation

iv. Becomes insolvent

Written notice of forfeiture must be given. Such notice must specify the breach and the remedy

required. Under the Registered Land Act, the right of forfeiture is only exercisable if the tenant

fails to make money compensation.

However, a landlord entitled to forfeit the lease is deemed to have waived his right to do so by:

i. Acceptance of rent which has become due since the forfeiture

ii. Distress for rent

iii. Any other act showing intention to treat the lease as subsisting.

The right is exercisable by either:

i. Peaceable entry if the premises is empty

ii. An action for ejectment.

The effect of forfeiture of a lease is to determine every sub-lease and every other interest

appearing in the register relating to the lease.

(d)Surrender: This is the giving up by the tenant to the landlord of his interest in the premises.

Express surrender is effective. The surrender must be made in a prescribed form executed by

the tenant. Surrender may be implied where the tenant gives up possession and the landlord

assumes possession in circumstances which show that the relationship has been terminated.

(e) Merger; Under Section 111 (d) of the ITPA, a lease of immovable property determines in

the case of interests of the lease and the lessor in the whole of the property become vested at

the same time in one person in the same right. Under Section 44 of the Registered Land Act,

mergers must be express.

(f) Conversion: A lease determines if the lessee converts the lease to some other interest, e.g.

freehold by due compliance with tile law.

b) Distinguish between the following

i. Real property and personal property

Real property and personal property

Real property signifies interest in land, immovable, traditionally could be restored to the owner

Personal property: this is personality or movables sometimes said to be chattels or chattels real.

Traditionally not recoverable if dispossessed

ii. Legal interests and equitable interests

Legal interests and equitable interests

Legal interest is a right to over the land of another e.g. easement, legal mortgage

It is an interest which is capable of subsisting or being conveyed or created at law it is enforceable against everyone

Equitable interest this is an interest recognized only by equity only and enforceable against all

others except a bona fide purchaser of a legal interest without notice of the equitable interest,

examples include restrictive covenants.

QUESTION 10

a) Describe the various ways in which co- ownership in property may be terminated

i. Partition of the land concerned

ii. Transfer to a third party

iii. Union in sole tenant becomes vested in one person

iv. Severance i.e. conversion of a joint tenancy to a tenancy in common

b) Explain the characteristics of easements

i. There must be a dominant and servient tenement

ii. The easement must accommodate the dominant tenement

iii. The dominant and servient tenements must be owned or occupied by different

persons

iv. The easement must be capable of forming the subject matter of the grant e.g. there

must be a capable grantor or grantee.

c) Karanja had been a tenant in Wamalwa’s house for the last three months the parties

had executed a lease for a period of one year. However, Wamalwa is aggrieved as

Karanja broke all the doors in the house following several fights with his wife.

Wamalwa now seeks your advice on the various ways he may terminate the lease agreement

and lawfully evict Karanja. Advice Wamalwa

The problem is based on the ways in which a landlord and a tenant may terminate a lease

i. Lapse of time: wait for effluxion of the duration prescribed

ii. Forfeiture: Wamalwa is entitled to re-enter the premises to determine the lease

prematurely by reason of Karanja’s breach

QUESTION 11

In relation to law of property

a) Distinguish between ownership and possession

Ownership

i. Confers certain basic rights over the property for example rights to exclusive use,

possession, misuse and disposition

ii. The proprietor may part with possession by choice

iii. It is a question of law

Possession

i. This is the mere fact of holding or controlling the property

ii. It does not generally confer proprietary rights

iii. It is a question of fact

b) Explain the ways in which ownership may be acquired

1. Asserting ownership over things not previously owned by any other person

2. Adverse possession

3. Purchase from a previous owner

4. Without the owner’s consent e.g. by court order

5. Inheritance

6. Intestacy

c) Distinguish choses in action from choses in possession and give examples of each

i. These are intangible rights which can only be enforced by a court order

ii. They are not capable of physical possession

Chose in possession

These are tangible things or subject matter capable of physical possession e.g. land, motor

vehicles e.t.c.

QUESTION 12

a) In relation to the law of property summarize the implied covenants by a landlord in a

lease agreement

1. To put the tenant into possession

2. Not to derogate form grant

3. Ensure the premises are fit for the purpose for which it is let

4. Ensure quiet possession by the tenant

5. Maintain the main walls passages and roof e.t.c(duty to repair)

6. To suspend or adjust rent if the premises or part thereof is rendered unusable or other

wise by reason of the tenant’s negligence

b) A lease agreement usually contains implied terms on the part of the lessor and lessee.

State the terms implied on the part of the lessee

1. Duty to pay the rent reserved

2. Duty to pay rates and taxes

3. Duty not to commit waste

4. Duty not to transfer, change, sub-let or part with possession.

5. Duty to permit the Landlord view the condition of premises

6. Duty to make reparation for any breach

7. Duty to make material disclosures

8. Duty not to erect fixtures

9. Duty to put the landlord in possession

c) Wambura, a rich but illiterate freehold owner of property has leased his property for a number

of years to Wanyonyi.Wambura wishes to repossess the property for his own use and seeks to

know the various ways in which lease may be terminated. Advice him.

A tenancy relationship may be brought to an end or terminates in the following ways:

(a) By Notice

This method is applicable where

(1) The tenancy does not prescribe a date for termination or

(2) Either party intends to terminate the lease before the agreed period. In the case of

periodic tenancy, the length of notice is one half the duration.

The notice must be appropriate and sufficient to manifest intention to terminate the lease. The

notice may be given to the landlord or his agent or through registered post.

The notice must relate to the entire premise demised. The lease determines on the expiration of

the notice.

(b) Expiration (lapse of) or effluxion of time.

All fixed term leases generally terminate upon expiration of such time. Under Section 64 (1) (a) ofthe Registered Land Act, a lease determines “where the period of a lease has expired.”

(c) Forfeiture:

This is the right of the landlord or lessor, in the event of certain breaches, to re-enter the demised

premises and thus prematurely terminate the lease.

The right is only exercisable:

1. Pursuant to a forfeiture clause generally, leases contain clause specifying the breaches

for which the landlord may re-enter the premises.

2. Pursuant to statutory, in the absence of an express stipulation. Under section 56 (1) of

the Registered Land Act and Section 111 (g) of the ITP A the right is exercisable if the

lessee:

i. Commits any breach of: or omits to perform an express or implied condition.

ii. Is adjudicated bankrupt

iii. Being a company goes into liquidation

iv. Becomes insolvent