Legal Systems

LEGAL SYSTEMS

What is a legal system
It is an operating set of legal institutions, procedures and rules regulating a given society
From a law perspective: restricted to where the 'sovereign' commands different laws for different groups of the population
From a non state perspective: includes the system of courts and judges supported by the state as well as non legal forms of normative ordering.
Normative ordering - e.g. Written codes, security forces, tribunals etc which replicate the structure and symbolic form of state law.
Informal/ no legal forms of normative ordering: process of establishing rules, securing compliance to rules, punishing the rule breakers

Legal system is a system coordinated, functioning whole made up of a set of intercalated, interacting parts.
Solutions to specific legal problems requires an understanding of the lega system

How are the legal systems identified. Grouped
1. historical background and development
2. predominant and characteristic mode of thought in legal matters
Especially distinctive
The kind of legal sources it acknowledges and the way it handles them it's ideology romanisic (French); two main secular legal systems are: common law and civil law;

LEGAL METHODS

The methodologies that the courts employ to create, elaborate and apply the substance of the law.

Legal method is a systematic body of knowledge generated by the law itself, defining its functions and ways in which it is applied
Examples of legal systems
Civil law
Common law
Religious, canon, islamic, Jewish
.....
....

COMMON LAW

Definition
The law which English courts applied as developed through the principles of precedent without reference to legislation passed by parliament.

Historically from England, but note the key date of 1972, in view of changes from joining the European Community

Describing its nature
Centrality of the judiciary - their decisions constitute the written law ( maxims, precedents, reported decisions) that constantly need to be rationalized and developed into a coherent 'system'
Buildup trough discussions and decisions of cases
Presumption that law is unwritten

Debate:
Is common law a judge made law, not democratic?
Judgement is only evidence of an existing law, so judges do not make law -
Commonwealth is a judge made law, judges are empowered by the executive - Austin
Theoriical argument ( Dworkin) - chain process of finding and inventing law
1961 - an offense of conspiracy to corrupt public morals became a new offense.

Merits of Common Law

- Common law consists of a few broad and comprehensive principles founded on reason, natural justice and enlightened public policy.

- Infused with flexibility and adaptability

Demerits of Common law
- that the principles of law are difficult to ascertain , because they are embedded in numerous, often inconsistent decisions, and that great research and keen acumen are required to extract the rule of law.
- That judge made law even if ascertained is to definite and certain, but is subject to change depending on who is sitting on the bench from time to time.
- Good to be flexible, but may become guesswork to know how the court will decide; why not have a system that is certain.

Essentials of Common Law

- Essential to have a cause of action - a legally recognizable claim.
- The court dealt with remedies, rather than with rules.
-

The Common Law Prcedure
Two stage procedure
- Stage one - legal issue
- Stage 2 - Proof of legal issue by expert and decide on the issue by jury via adversarial system - each side make their case in a public court through - oral argumentation, each side brings their witnesses, judge is a referee, judge ensures that that questions are relevant and method of cross examination is fair....
Limitations of remedies - only monetary compensation ( which jury could award)
Additional remedies are now available like an injunction

Common law categorized into two:
- Traditional - rigid and difficult to change
- Equity - flexible
A litigation system in which the trial is the distinct and separate climax to the litigation
Applies to all legal persons
Adopts a deductive argument
Court room procedures are rigid and use technical rules
Parties to the dispute control proceedings and there is an emphasis on oral argument
Describe the adversarial contest
Expensive to each party
Today, common law is primarily important in the law of tort and contract law
E.g. law of Contract Act

CIVIL LAW

Codified - statement of whole law in a coherent systematic form.
Historically - ancient Roman law codified in Corpus Doris by Emporor Justin 528-534 AD - a Roman Empire
Then afterwords, In Europe France, Germany, Itally Switzerland via the influence of Napoleon - new code
Distinguish sharply: private law v public law
A main one was the French Napolionic Code
Two separate courts for these - different courts, different procedures
In civil law the reasoning is INDUCTIVE
Broad principles are outlined consider the facts of the law
Apply the principle to the facts
What do you conclude after applying the principles
There is only one right answer - there is no dissenting views.

How do common law's rules work?
- Not viewed as final
Judge can narrow or broaden depending on the facts and circumstances

In civil law there is no dissenting
Status of academics commentators vers status of the judge

Sharper distinctions between substantive law and the procedural law

Procedure: include - steps a litigant must take to bring or defend an action; how do you enforce the rights?

Civil law rights - come from substantive law
....

Inquisitorial procedure rather than an adversarial procedure
Parties could informally suggest the question which the opponent should respond to but it is the judge to answer
Parties know in advance the questions the judge will be asking
Role of the judge is to discover true basis of the dispute, bring to light all aspects of the case

Preliminary Exercisse : Compare and contrast the two systems
In common law, you must fit the claim within a fact - possibility of mixture
Adversarial clear issues and principles
Adversarial - issues and procedures are clear
As it relates to evidence; when. Is a person more likely to tell the truth: civil system believes it is in private; common law believe it is in open court, faing cross examination
Civil law evidence is in writing - provided the rules of evidence are followed and signed by Notary Public
Common law prefers oral evidence

Yardstick: which is better at delivering justice
Difference in eliciting evidence and delivering justice : adversarial - parties; inquisitorial - court
Role of lawyers - adversarial - can conceal evidence etc; in inquisitorial - lawyer is an officer of the court and should assist the court in arriving at the truth - the advocates cannot hide under client/ advocate confidentiality

ISLAMIC LEGAL SYSTEM principle source is the Quran and the Sunnah
Sunnah - teachings of Prophet
Secondary - Ijtiha - consensus and opinions of learned persons
Analogies
Interpreted according to school of thoughts
Shia have no schools of thought. They have additional sources - 12 disciples of Prophet Mohammed. Also refers to human tuition.

CUSTOM AND TRADITIONAL LAW
Applied in marriage, inheritance and succession

HYBRID/ MIXED LEGAL SYSTEMS

Is hybrid - has substantial elements of two or more legal systems
Majorly a mixture of common and civil law. But also a is of civil and customary law.
Usually it emerges from historical circumstances - like S. Africa has Dutch, English and German systems mixed into a hybrid.
Examples of Hybrids: Loisiana, uS state; Quebbec ( Canada). ; Sotheby's Africa - variety of definition - broad and narrow
Israel - hybrid legal system from all over
St. Lucia - mixed civil and common law - challenges of interpretation
Not a mixed legal system - Gacaca Courts in Rwanda

ASSIGNMENT:
Choose a country and tell describe its legal system

PRACTICAL AND CONTEMPORARY ISSUES TO REFLECT
Influence of the legal system on he economic development
- common law systems are better for economic development

Ref: WORLD BANK 2004 REPORT: Doing Business
World Bank Debate on the success of common law economies over civil law legal systems
The EU moving towards precedent - is the world moving towards a single global legal system -
Is there a movement towards a convergence of the common law and the civil law system?
The UN is working towards a unified legal system, especially for international trade.

LEGAL PLURALISM
A situation of legal pluralism - omnipresent normal situation in human society is one in which the law and the legal institutions are not all subsumable in one legal system but have their sources in the self regulatory activities of all the multifarious social field present, activities which may support, complement, ignore or frustrate one another so that the law which is effective on the "ground floor" of the society is the result of enormously complex and usually in practice unpredictable patterns of competition, regulation, isolationism, and the like . - Griffinth 1996

Legal pluralism is an attribute of a social field and not of a law or of a legal system.

Legal pluralism is "the condition of a person who in his daily life is confronted in his behaviors with various possibly conflict regulatory orders, be they legal or non legal, emanating from the various social networks of which he is voluntarily or not a member."

Examples: FGM vrs law; child marriage vrs law; MRC vrs law; national law vrs A Shabab.

It's important to note the significance of non state law e.g in dispute resolution not all state law is recognized or acknowledged.

Formal and informal association based on politics, ethnicity, religion, geography, business, trade and common interests, all constitute " norm generating communities" which may instill behavioral alligence that may exist within or across a state boundaries and these communities, in turn, generate practices that seek to advance common goals and provide proprietary legal remedies unavailable through positive legal channels. The social space shared by these overlapping obligations is necessarily filled with conflict as competing communities strive for priority....(Battles can turn physical)

Objective of Legal pluralism: to provide a framework to manage the hybridity of competing and overlapping norms.

It tries to encourage not domination by one, but rather get mechanism for 'provisional compromise'.

Legal pluralism focuses more on refereeing rather than on winning, bringing order to shared space by acknowledging the inevitability of disorder (Holbrook).

It recognizes the inevitability of hybridity.

It should offer a platform for resolution of legal conflicts.

Example is in Philippines where the North is predominantly Christian while south is predominantly Muslim.

Political power struggles: how much to give or take.

The individual is constituted within social fields with overlapping legal orders, within which power relations govern the field of possible actions and instill a "common sense". The power relations develop inequalities between individuals which are not one way flows of power - the dominator imposing his or her power on the subordinate - but evolve through a process of interacting through which both the domination and subordinate each engage in strategies of struggles.

Relevance: can it isolate law?

Legal pluralism is infact a general phenomenon linked to the coexistence of different systems of rules , concepts, and values, which has always existed but has surely increased in recent decades, when multi-fold relationship and interactions increasingly challenge the possibility of isolating law as a merely national element ( Antonioli)

Assignment: Farran's article: 31 Pages

MONDAY 1st JULY 2013

Kenya's Legal System
Refer to:
Constitution A. 2(1) - (6)
Judicature Act Cap 8 Sec. 3(1)(a) -(d) and 3(2) www.kenyalaw.org Judicature. Act Cap 8
(3) (1) Jurisdiction of the H. court and Court of Appeal and all the subordinate courts shall be exercised in conformity with:
(a) the constitution
(B) written law including UK
(C) common law and doctrines of equity.....
(2) Guided by African Customary Law.....

The Constitution of Kenya, 2010
A. 2 - constitutional supremacy

Doctrine of Legislative Primary

Legislation guides common law
Guidance as to the nature of common law
Guidance as to the applicable date
As to scope of application in Kenya
Common law I'd a background / backdrop of legislation

LEGAL REASONING
A paradigm of legal reasoning
How do judges decide law cases?
Elements of judicial decision making
How courts solve problems
Logic and rhetoric operate in a legal thinking and problem solving
Law has some internal and external logic
How judges justify legal outcomes from non legal-grounds

Key Elements of a Legal System
- Rules - internal logic
- Courts & Judges - External Logic
- Traditions and Jurisprudence

1. Rules
Those norms that govern the conduct of a legal system's constituents
Rules facilitate having a legal outcome - without rules one cannot have a legal outcome
Rules must bear legitimacy; are agreed upon by members of the legal community's members.
Rules validate a legal system and vice versa
Under common law legal system, the rule is PRECEDENT.

2. Courts and Judges - the External Logic
Judges in court apply the rule of precedent
The courts and its judges need to have legitimacy
Courts and judges derive their legitimacy from the community
It is the community that assigns the persons or group of persons the function of determining controversies.
Judges are therefore expected to decide cases according to ruled e.g precedent
But what if a case comes up that does not fall within any precedent?

3. The Jurisprudence and Tradition of the Legal System
What do judges do and not do in deciding cases that come before them e.g
i. Constitution is supreme; parliament makes law; judges only apply it;
Ii. Formal justice - like cases should be treated alike; iii. Substantive fairness - give notice about what the law commands to those who should obey it; protect the reliance upon the applied promise of consistency and predictability envisioned within the law system;
Jurisprudential schools of thought:
- Naturalist - judge should aim to reach morally right results;
- Positivist - no need to connect law and morality - law is as is)
- realist - decide taking into consideration changing economic or social circumstances

......
- identify controversy
- which rule should be applied
- How will the judge ensure the de idiom is logical
- How to justify Outcome

Legal problem solving/ legal decision making
- legal reasoning: analogy, deductive and inductive

Inductive Legal Reasoning

Identifying the legal significance of facts of a case or identifying the issue using inductive method - discover a general principle from a particular instances.
The answers take the form of a hypothesis.
To make conclusions, ask more questions, gather more facts...
As facts materialize, the judge builds up the law framework
If there is no conclusive answer then the judge has to proceed to look at precedents similar to that story/ scenario that is being resolved. - like cases are to be treated alike...
Three steps to do this ( reason by analogy/ precedence)
Analogy (logic) - a process of arguing from similarity in known respect to similarity in other respects.

Some cases are easy because the precedent on point is readily available and there is no competition between rules
Other cases are hard cases: competing rules require the judge to select analogically the most appropriate precedent according to criteria of choice called legal principles.

Steps in reasoning by analogy
Step 1 : look at similarities between the case and the existing precedence to what extent are these similarities? It need not be identical, but be as close as possible to rely on the decision. Are they sufficient to produce the same result that was in the case to be decided.
Step 2: identify the rule of law ( ratio decidendi) in the precedence as the rule to be applied in the case (as opposed to orbiter dictum)
Step 3: Apply the rule to the case to be decided.

When looking at a precedent, Check: which court? Is it on appeal? Parties? Facts of the case? The Key arguments?

Money laundering case
Statute defines a lawyer as a person authorized to practice law. Advocate client privilege does not apply - client knew that the former lawyer was disbarred.

There are two types of analogy:
1. Static analogy - according to ratio decidendi
2. Dynamic analogy - according yo obiter dictum - the decision changes or expands the a statute.

On what basis can you do a dynamic analogy?
This happens when the statutory definition is open ended, giving space for for dynamic analogy. The judges then exercise their discretion.

LEGAL PRINCIPLES
They are extra legal concepts that inform rules.
They are not necessarily legal concepts.
They exist within the realism of social control.
They are linked to the aims that the law seeks to achieve in a society

A judge would apply discretion to advance legal principles/ purpose law.
Refer to Ronald Dworking.

Ranald Dowrkins observes that not any principle will do to justify a change, or no rule will ever be safe. There must be some principles that count and others that do not, and there must be some principles that count for more than others.

For example, principles in law seek to advance moral concerns over features of the social community. For instance. Law protects people first rather than property.
A
In case three: the principle that counts is that the state is entitled to present the testimony of material witnesses, baring some extra ordinary reasons for exclusion.

For the defendant the principle could be criminal defendants should not be inhibited to make reasonable disclosure to persons the reasonably believe to be authorized to practice law.

Which principles will the judge choose to decide the outcome of the case?
What will be the judge's Choice?

It's important to note that the choice would create a change in the statute.
Dworkings holds that judge's choice presumed to factor : standards of rationality, fairness, and effectiveness.

RULES OF STATUTORY INTERPRETATION

in what sense are they rules?
They are not like law, of a binding nature.
They are servants, the masters.
Aids to construction, presumption, and are pointers.

Meaning is made in relations to the particular facts/ circumstances.

Presumption in favor of the ordinary meaning; unless the result is absurd.

Thereafter consider other approaches.

1. Contextual analysis
Read provisions with regard to the Act as a whole
May also consider broader legal context, international law, social, political, cultural and economic contexts that is relevant to thebAct

2.Purposive Analysis
Read provisions in light of the purpose of the Act as a whole.
Interpret specific provisions to promote the purpose.

Legislative purpose
Primary aims or objectives of the Act.
What is the effect did it hope to produce
Secondly consider policies - the act will serve to pursue the primary aim.
Consider the functions of the provisions; what contribution does the provision expect to make?

What is the mischief to be cured? ( Heydor's case(1584) 76 ER 637

3. Cure Mischief: Heydor's Case
" What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth.
Determine the true reason of the remedy; and then the office of all the judges is always to make construction as shall suppress the mischief, advance the remedy."

PROBLEMS OF INTERPRETATION AS THEY ARISE IN CASE LAW

Inhabited Dwelling

Statute: every burglary of an inhabited dwelling is a felony punishable by up to 20 years imprisonment.

Summer cottage, unoccupied, broken into during winter

What do you think the court held and why? Use the principles of statutory interpretation to explain.

Courts Holding
Yes. The cottages were inhabited according to the meaning of the statute. It was only momentarily unoccupied. It was equipped for the overnight accommodation of persons. Under those conditions, it had he characteristics of an inhabited dwelling.

The only way the cottage become way the house becomes uninhabitable then it loses that character on inhabited dwelling.

CASE TWO
House X ( a retal house) was burgled; renters had vacated permanently; but were using the house as a storage facility until rental period expires.

Case held
No. This was not a burglary of an inhabited dwelling. The crime is against habitation; therefore against people, not property.

An important overing concern was whether the house was used for overnight sleeping or is intended for such use in the future.

Important lessons:
- Literal meaning
- contextual analysis
- purpose of the legislation - what the law was to remedy.

Inhabit dwelling
Summarize the rules from the two cases:

What is and what is to an 'inhabited dwelling"

Exercise

CASE 1
Tent pitched. Two sleeping bags. Baby cot.
-

Case 2
Garage for storage is burgled. Attached to a house where people sleep and has a door leading into the house

Case 3
Brothel. Clients and service providers lose their property.

US V Holmes
Ship carrying immigrants to America. Struck an iceberg. 32 passengers and nine crew members in a life boat that was also leaking. One sailor, Holmes decided that the situation was going to be solved by lessening the number of people. Some passengers were thrown out. Charged with manslaughter and convicted.

Defence : it was the law of nature
To survive they had to act in self defence

Court ruling:
The law of nature is to an independent code;
It is guided by municipal (national) and any other civil war which guides men's duties everywhere
The act in defence can therefore only be undertaken within the context of the national law
There is no way the nature can override the municipal law.

Prosecution
Apply the law of necessity ( principle)
Look at the consequences
The consequence must ensure that the US marines is not scandalised in the world - hat sailors have absolute power at sea.

Court
If you are going to follow the law of necessity
1. Prove that the conditions were such that taking of life was necessary
2. All participants were consulted
3. A fair method was used - casting the lot
4. All participants must be equal in standing to each other. in this case however, passengers pay and have a contract. The salvors have a duty on the contract. The sailors owe a duty to passengers even if they risk their lives. Holmes was therefore convicted.

CASE
Spelunkerfcdr Explorers: Use US vis Holms as a binding precedent

There are five spelunkers who get entombed in a cave after a landslide blocks the caves only known entrance. They have to scant provisions with them. The cave itself hardly contains any edible matter.rescuers established communications with the men 20 days after the landslide through wireless radio. Engineering expert tell the men that they should expect to wait another 10 days before they are rescued. A doctor who gets to know that they have no food advices them that they may not likely survive the extra 10 days. On day 30 after 8 hours, one of the spelunckers, Roger, speaking on behalf of the group, enquires if the men could survive if they killed and ate one of their fellows. The doctor tells them that they may survive. On day 32 after the landslide, four men are rescued, the fifth was killed and eaten on day 23. The survivors say that Roger is the one who urged the others to resolve to canabalism and the parties discussed the idea and agreed to proceed. The victim was to be selected by throwing dice that Roger happened to be carrying with him. On the 23rd day, the day of selection, Roger withdrew from the arrangement wanting to wait another week. The others accused him of bad faith. One of the party then threw the dice for Roger when it came to his time to throw. Roger made no complaint that the throw was unfair. The decision was that Roger was to be killed and eaten. The four are charged with murder.

Use the case of US v Holms. Apply the law of necessity. Apply the four criteria. Write the decision. Draw analogy between US vis Holms and the Speluncker's case.

INTRODUCTION TO STARE DECISIS
Stand by the decision ( et non quieta) and do not disturb the in disturbed
The doctrine is simply that when a point or principle of law has been officially decided or settled by the ruling of the competent court in a case in which it is directly and necessarily invoked, it will no longer be considered as open to examination or to a new ruling by the same tribunal or by those which are bound to follow its adjudications, unless it be for urgent reasons and exceptional cases.
The principle holds that the Lowe court are bound by the decisions of the superior court
The doctrine is applied with varying degrees of strictness
The re divided into: binding and persuasive precedence

Assignment: Compare Judiciary between the old constitution and the 2010 constitution.

Two types of stare Decisis: horizontal and vertical.
Vertical Stare Decisis:

A. 163(7), the Supreme Court binds the Court of Appeal, High Court and the surbodinate Court and tribunals.
Vertically: if there is no decision by Supreme Court but there is a decision by Court of Apesll, the decision binds surbodinate court - margistrate's court, Kadhis Court, Courts, Martial, tribunals A. 165(7)
High Court decision binds the surbodinate courts

Horizontal Stare Decisis - persuasive
Supreme Court - Supreme Court - the stare Decisis principle does not apply. This only applies in urgent and exceptional reasons
Court of Apeal to court of Appeal
High Court to High Court

Scope and Application of Stare Decisis
Is the Stare Decisis principle to be applied indiscriminately? How is it to be applied? May one depart from the stare Decisis?

Young v. Bristol Aeroplane Co Ltd (1944) KB 718 at 719, 740 Lord Greene M.--.R
1. The Court is bound and has a right to decide which of the two conflicting decisions it will follow.
2. The court is not bound to refuse to follow the decision of its own which though not expressly overruled, cannot in its opinion, stand with a decision of the House of Lords.
3. Court is not bound to follow a decision of its own, if it is satisfied that the decision was given per incurium - "through want of care"

For example:
In the Locus standi, there are two cases:
School 1: Njoya and six other v R
School 2: Muturi V R

In one case the High Court decided that there was locus standi and in another case that here was no locus standi.

In a third case, the court has to decide which of the stare Decisis it would follow.

Step 1: Analogise and distinguish precedent
Jazz Hussein Gen Ijee v Hussein M. Aideed (2005) KLR Ed. Justice Mohammed Ibrahim - Distinguish
Wilson Nginga Kimotho v. Independent Electoral and Boundaries Commission & 2 Others (2013) eKLR Electiion Petion of 2013, High Court in Nyeri - depart from Supreme Court Decision

Step 2: Overule Precedent
- if there is distinction
A. Social/ legal reasons why the rule is no longer valid - e.g consent in wife's conjugal right to say 'yes/no'

Overrule precedence if:
They are erroneous or unworkable.

PER INCURIUM
Morelle Ltd v Wakeling (1955) 2 ( JB 379 (A) discusses what it takes for a judgement to be per incurium , Lord Evershed M.R? States

As a general rule the only cases in which decisions should be held to have been given per incurium are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned; so that in such cases some part of the decision or some step in the reasoning on which it is based is found, on that account, to be demonstrably wrong. Tis definition is not necessarily exhaustive but cases not strictly within it, which can properly be held to have been decided per incurium must, in our judgement, consistently with the stare Decisis rule which is and essential feature of our law, be in the language of Lord Green ( MR) of he rarest occurrence.

WIlliams v. Fawcet (1986) 1 QB 604
- In this particular case the judge is expected to make a decision on whether a decision was made per incurium.
- Refers to four cases in which Notices to Show Cause why committal to jail for not attending Court proceedings were issued. The four were committed to jail.
- It was later determined that the officer who signed the notices was not an authorised/ proper officer
- In this regard the decision for committal to jail was made without notice of the fact that the officer who signed the notices was unauthorised.
The issue to be determined was on whether these particular matters fell within the sphere of the principle of per incurium.
- the Court must take note of the need to exercise its power of determining the matter per incurium only in rare and exceptional circumstances.
- the court held that the cases were per incurium and therefore was to held by the previous decisions because:
---It was possible to determine how the error arose and developed
---Because of this there are people who are in jail and their liberty has been denied
--- the cases were dealing with the issue of the authority of the court - that orders of the court can be ignored or be disobeyed.
---What is the possibility that the parties could appeal to the Court of Appeal? It was determined that the route to appeal to Court of Appeal would be long and to likely.

Decision:
In so far as the authority cited, the four notices had to signed by the proper officer. There was a manifest slip or error. There is no warrant for that proposition whatsoever; either in the rules or in the statute. So I ask myself, is this case exceptions. I remind myself of the dangers of treating a decision as given per incurium simply on the grounds that it cannot be demonstrated to be wrong even if the error is fairly clear on examination of the authorities.

He was satisfied that four features Mande the error"very exceptional" : (a) It's growth could be clearly detected if all the decisions were read consecutively (II) allot the four cases deal with the liberty of the subject, and to reverse them would result into a number of subjects having to be released forthwith, (II) but on the other hand the four cases dealt with the authority of the courts to insist on obedience with their orders, which put them in a special category ( although committals for contemptible are by no means unusual, even in matrimonial proceedings; and the four cases were unlikely to reach the House of Lords which absent a decision by the Court of Appeal over taking the cases, would alone be able to correct the error.

Lord Livington (M.R):

First, the preferred course must always be to follow the previous decision, but to give leave to appeal in order that the House of Lords may remedy the errror(...)

Second, certainty in relations to substantive law is usually preferred to correctness since this at least enables the public to order their affairs with confidence. Erroneous decisions as to procedural rules, affect only the parties engaged in relevant litigation. This is a much less extensive group and accordingly a departure from established practice is to that extent less undesirable

Third, an erroneous decision which involves the jurisdiction of the Court is particularly objectionable, either because it will involve an abuse of power, if the true view is that the court has no jurisdiction, or a breach of the Court's statutory duty, if the true view is that the court is wrongly declining jurisdiction.

If the matter is unlikely to reach the highest court, then presumably, it should be justified to depart from the stare Decisis rule and judge ( the judgement) per incurium.

Flexibility when it refers to constitutional issues
Even if there is a binding precedent, the Court may depart from the precedence by invoking a constitutional provision
Example: In order to meet the standards of A.10 of the Kenya Constitution 2010 on the National Values and Principles.
Example2: in dealing with the locus standi on environmental issues
Example 3: in dealing with requirement for procedures in court processes

Mother realised reaction on the drip, informed the nurse who did not at.
The doctor later discovered but no action was taken
After moving he baby to another hospital, the arm is armpit tutted
The mother sue through a plaint.
Precede re is for the defendant to enter a defence.
The hospital did not enter defence leaving the court with no alternative but to grant the prayers as prayed.

Denmark Oigoro Oonge Vrs Njoya Consolidated Ltd

The plaintiff worked for the defendant as a tractor driver.
He fell and was injured by the tractor.
Plaintiff sued no defence was submitted.
Usual procedure is to grant orders as prayed.
However the court did to grant orders as prayed.
It gave less compensation less than prayed
The plaintiff appealed against the decision claiming that the court made a decision per incurium

Salem & Anaother Vrs Ngala (2004) eKLR why did the court find the precedent per incurium? ( read)

Joseph Njramba Karura Vs Republic (1982 - 1988) 1 KAR 1165
The court held that the investigating officer should be a different person from the one prosecuting the matter in Court.
Is it binding that this must be the case? Does the case become invalid
An investigating officer should to take statement with a view of using them as evidence, the prosecutor.
FIn the case of cancan Wahome Wamar v Republic determined that the Karura case was made per incurium.

Other considerations for departing from stare Decisis

What are the interest at stake? Are they so important so that you must follow the stare Decisis rule
How old is the previous decision
Were all the arguments made in the court that made a binding decision
How far has the public relied on the precedence
What are the consequences of following one and not the other precedence
Was there a dessent in the bench that determined the precedent
Could the precedent be so complex that following it becomes a challenge?

Next classes are on 29th and 30th
CAT on 5th and 6th
Assignment on Spelencan Case

29.07.2013

LEGAL PRINCIPLES
The chart shows the normative standards that is used in the practical reason that the judge has to follows.
In the very same way a moral pronciple helps a person reach a decision, in the same way a judge is assisted by legal principles to reach a decision. The major difference is hat moral principles are personal, legal principles are given and do not depend on the judge believing in them. The judge has to follow the legal principles in reaching a decision, whether or not hey accord with their moral principles. E.g. If the legal principle states hat a repeat offender should be given maximum sentencing, the judge is obliged to apply this principle even if he is sympathetic.

Role of Legal Principles:
- Basis to interpret law.
- Basis for changing law
- Basis on which certain laws are not going to be applied in certain situations e.g. In the situation of a beneficiary causing the death of he his father, the law of succession making the murderer an automatic beneficiary will not be applicable
- Basis for making new legal rules

Comparison between Legal Rules and Legal Principles
- Content: legal principles are extra legal, and coming from values, policies, goals etc, are usually moral. THey are called first order reasons. In contrast, rules are action oriented, specifying the cause of action to be followed.
Legal principles can justify a rule but not vice - versa. Rules cannot justify principles.
- Logical structure:
Rules are structured in an all or nothing way. If there are particular facts in particular case, the rules must apply. They are very specific. Principles are structured to guide to options depending on the principle is being weighed. It guides to a direction or another according to he circumstances.

EXCEPTIONS YO ANALOGICALLY REASONING

Analogical reasoning is used by common law judges within the doctrine of stari Decisis so that the ratio decidendi does not depart from a decided one.
The are instances when analogy is not used:
- when a judge is faced with a Novel totally new circumstances), not decided before.
- if the precedent is no longer sound or applicable. E.g. The husbands right to conjugal right as per precedence was no longer applicable as from 1999 with the introduction of a new law.
- when the application of the all existing precedents do not help in resolving the matter at hand.

RULES OF STATUTORY INTERPRETATION IN CIVIL LAW SYSTEMS

Civil law systems looks at:
- Grammatical interpretation: focus is on the grammatical meaning of the word.
- Logical interpretation: look at the statute as a whole; other legal terms within the statute,; general principles of law; and other statutes, in order to interpret.
- Historical interpretations: look at the different debates in parliament regarding the law; the intension and purpose of the draftsmen. This considers the historical progression of the statute.

Teleological interpretation: the aim here is to be progressive and to reflect the trends of advanced social values.