CLS 112 Legal Systems and Methods Course Outline

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THE CATHOLIC UNIVERSITY OF EASTERN AFRICA (CUEA) P.O. BOX 62157 00200 Nairobi KENYATel: +254-20-8891601-6, 8890023-4, Fax: 8891084, Email:[email protected],Website: www.cuea.edu

Founded in 1984 by AMECEA (Association of the Member Episcopal Conference in Eastern Africa)

THE CATHOLIC UNIVERSITY OF EASTERN AFRICA

Mission statement:

Inspired by Jesus words; Consecrate them in the truth (Jn: 17:17) CUEA seeks to promote scientific research, quality teachingand community service for the purpose of enhancing Christian living.

FACULTY OF LAW

Department:PRIVATE LAW Campus: LANGATA

COURSE OUTLINE

Unit Code:CLS 112 Unit Title: LEGAL SYSTEMS & METHODS

Credit Hours:

Academic Year: 2014/2015 Trimester: May - July

Class Hours & Room No.: Wednesday 8-11a.m.; TH02 Lecturer: Dennis M. Ndambo

11a.m.-2p.m.; TH02

Thursday 8-11a.m.; OH02

Hours of Consultation:Thursday 11a.m.-2p.m. CUEAE-mail:[email protected]

Purpose of the Course:

The first part of this course seeks to educate the student on different legal systems as well as their

applicability to different countries. The course also seeks to familiarize students with the way in which

this countrys legal system has evolved from colonial times to date and the basic principles which guidethe implementation of legal concepts in Kenya. In doing this, the student is enlightened on the ways in

which cases are decided regarding different subject areas of law. This course seeks to examine the

process of judicial law making, statutes and statutory interpretation, construction rules, the function and

style of judgments and presumptions at Common Law.

Course Description:

The course covers the introduction to legal systems; the principal legal systems of the world and their

peculiarities; classification and concepts of law; introduction to Kenyas legal system; doctrine ofprecedent, statutory interpretation, legal education in Kenya; access to legal services.

Learning Outcomes:

At the end of this course the student will be able to understand:a)

The historical development of the legal systems of Kenya and its salient features;

b) The similarities and differences regarding the legal systems of various countries, depending on

the surrounding circumstances of each case;

c) Various cases which have been interpreted in Kenya under its old and new constitutions,

regarding the peculiar features of the legal system of this country;

d) The sources and classification of law;

e) Legal reasoning in judicial and legislative processes;
mailto:[email protected]:[email protected]:[email protected]:[email protected]


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f) The structure of the legal institutions and the hierarchy of courts in Kenya;

g) The Common Law case technique, statutory interpretation skills, drafting of judgments;

h) Be able to distinguish between the major kinds of law, legal systems and institutions.

Requirements

No prerequisite courses required.

Class

Schedule

Contents/ Topics Reading texts

Part 1: Legal Systems

Week 1 Overview of world legal systems

- International, regional and municipal socio-economic

systems as frameworks for legal systems- Beliefs, customs, practices and religion as sources of

law

- Customary law; Common Law; Civil Law; religious

law;

Week 2 History of the Kenyan legal system- Origins of the Kenyan state and law

- From protectorate to republic

The Kenyan legal system

- Institutional framework: legislature, executive,

judiciary

- Sources of law: custom, religion, statute, case law,

foreign law, international law

- Classification of law: civil-criminal; substantive-

procedural; municipal-international

Ghai and McAuslan, PublicLaw and Political Change in

Kenya, pp. 3-381

W.B. Harvey, Introductionto the Legal System in East

Africa, pp. 415-416; 525-536

Part 2: Legal Methods

Week 3 Kenyan Court structure:- Superior courts

- Subordinate courts

- Tribunals

- Court-martial

The Common Law case technique

- The ratio decidendi: the narrow ratio; the broad ratio

- Doctrine of stare decisis

- Distinguishing of cases

- Obiter dictum

Week 4 The Legislative Process

National legislature Parliament National Assembly and Senate

Bills: Special, Ordinary and Money; presidential

assent and referral; coming into force

County legislatures

Resolution of conflict of laws between National


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and County laws

Week 5 Statutes and statutory interpretation

- Approaches to statutory Interpretation

- Problems in statutory interpretation

Primary rules of interpretation The literal rule

The golden rule

The mischief/ purposive rule

External aids / extrinsic aids

i. Preparatory works/ travaux preparatoirs

ii. Statutes inpari materia

Rules of language

- Ejusdem generisrule

Inland RevenueCommissioners v Hinchy

(1960) 1 All ER 505

Fisher v Bell (1961) 1 QB394, (1960) 3 WLR 919

R v El-Mann (1969) E.A.357

River Wear Commissioners

v Adamson (1877) 2 App Cas

743

Grey v Pearson (1857) 6HLCas 81Re Sigsworth (1935) Ch 89

R v National Commissionerexparte Connor (1981) 1 All

ER 769

Heydons case (1584) 3 CoRep 7a

New Great Insurance Co.Ltd v Cross (1966) EA 90

Dharamshi Vallabhji v

National and Grindlays Bank(1964) EA 442

Jafferali Alibhai vCommissioner of Income Tax

(1961) EA 610

Sandiman v Breach 7 B&C99

Powell v Kempton ParkRacecourse Co. (1899) A.C

143

Brownsea HavenProperties v Poole

Corporation (1958) Ch 574

AG v Abdulla and Others(1960) E.A. 672

Corkery v Carpenter(1951) 1KB 102


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-Expressio unis est exclusio alteriusrule

- Noscitur a sociisrule

Mbugwa v Mbugwa (1949)E.A.C.A

Devashi v TransportLicensing Board (1971) E.A.

28

R v Inhabitants of Sedgley(1831) 2 B &Ad 65

Dean v Wiesengrund(1955) 2 Q. B 120

Jones v DPP (1962) A.C.635

R v Harris (1836) 7 C&P446

I.R.C. v Frere (1969) 3 WLR1193

Week 6 Internal aids / intrinsic assistance

-

Long title; short title; preamble; marginal notes;punctuation; division into sections and subsections

Presumptions applied in interpretation

- Presumption against change in common law

- Presumption against ousting jurisdiction of the court

- Presumption against retrospective application

- Ousting of the jurisdiction of the court by express

words only

- Consistency in use of terms

- That statutes do not affect the Crown

- That Parliament does not intend to violate

international law

-Taxing and criminal statutes to be strictly construed

- Presumption against interference with vested

(proprietary or contractual) rights

- That statutes are of territorial application

Black-Clawson

International Ltd v.Papeirwerke Waldhof

Asschaffenburg A.G. (1975)

A.C. 591

R. v. Medical AppealTribunal ex. p.Gilmore

(1957) 1 Q.B. 574

Re Metropolitan FilmStudios Application (1962) 1

W.L.R. 1315

Westminster Bank Ltd v.Beverly Borough Council

(1971) A.C. 509

Tuck & Sons v. Priestly(1887) 19 Q.B.D. 629

Whitley v. Chapel (1868)L.R. 4 Q.B. 147

R. v. Harris (1836) 7 C&P446

Yew Bon Tew v. Kenderaan

Bas Maria (1983) 1 A.C. 553

Waddington v. Mian (1974)W.L.R. 683

Textbooks/References

i)

Adams, J. and Brownsword, R., (1999), Understanding Law, Sweet & Maxwell.ii) Bradney, A., et al.(1995), How to Study Law, (3rd Ed.), London, Sweet and Maxwell.

iii) Halsburys Laws of England, Vol. 36iv) Mansell, W., et al.(1999),A Critical Introduction to Law, (2nd Ed.), Cavendish Publishing Ltd.

v) Oliphant, A., A Return to Stare Decisis, 14 American Bar Association Journal 71 (1928).

vi) Slapper, G. and Kelly, D., (2003), The English Legal System, (6thEd.) Cavendish Publishing Ltd.

vii)Stychin, C. and Mulcahy, L., (2003), Legal Method: Text and Materials, Sweet & Maxwell.


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viii) Williams, G., (1982), Learning the Law, (11th Ed.), London: Stevens and Sons.

ix) Elliott, C. & Quinn, F., English Legal System(Pearson Education Ltd, 12thEd., 2011).

x) Holland, J. & Webb, J., Learning Legal Rules(Oxford University Press, 7thEd., 2010).

xi) Fox, M. & Bell, C., Learning Legal Rules(Oxford University Press, 6thEd., 2006).

xii)Winters, B., Excellence of the Common Law Compared and Contrasted with Civil Law: In Light of

History, Nature, and Scripture(Mountain Press, 2006).

xiii)

Merryman, J.H., The Civil Law Tradition: An Introduction to the Legal Systems of Europe and LatinAmerica(Stanford University Press, 3rdEd., 2007).

Legislation

Constitution of Kenya, 2010

Interpretation and General Provisions Act, Cap. 2, Laws of Kenya

*Any other reading material that is required will be made known ahead of the relevant class in which

such material will be used.

Teaching methodologies/approaches

- In class lectures and discussions

-

Interactive learning activities- Assignments

Other Materials and Equipment

In-house School Academic Policies and Guidelines

Study Tips for 1stYear Law Students,

Debaters and Speakers Handbook,

Guidelines on referencing and attribution of academic works.

Internet

Lexis Nexis

E-Journals

Law Africa

Kenya Law Reports

Handouts Select pieces from teaching staff

Audio Visual Equipment

LCD screen, projectors and laptop for Power Point presentations

Whiteboard and markers

Microphones and speakers

Course Assessment

Students registered for the unit are required to complete the C.A.T. (which will comprise 30% of the

final grade) and the final end of trimester examination (which will comprise 70% of the final grade). If a

student failed to do the C.A.T. or the final exam, the result is reported as I (incomplete).The dates

(subject to amendment) are as follows:- C.A.T: 3rdand 4thJune 2015

- Exam: 3rdAugust 2015

Policy Issues

xiv)All students should attend all classes and actively participate in class.

xv)If a student fails to attend more than six (6) hours in a trimester, he/she will not be allowed to sit


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for the final examination. This also applies to tardiness.

xvi)Students with special needs are required to see the unit instructor and discuss their needs.

xvii) Students repeating or auditing the unit must inform the instructor.

xviii)All mobiles phones must be switched off during class hours.

xix)If a student is late for 10 minutes, he/she is not allowed to enter the class.

xx)If a lecturer is late for more than 10 minutes without prior notice, the class representative should

report the matter to the HOD.

Health and Safety Issues

Students are responsible for their personal belongings while in campus. If students notice a situation

endangering their safety or the safety of others are advised to inform the lecturer or any officer in the

campus.

CLS 112 Legal Systems and Methods Course Outline

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