a) Define the term law in the strict sense of the word
b) Explain eight sources of law in Kenya or you country
ANSWER
a) The term law has no assigned meaning. It has no specific definition. However, it has been used in a variety of sense different writers who have attempted to explain it.
• The study of law is referred to as jurisprudence. According to Hart law is coercive instrument for regulating social behaviour.
• Law has been described as a command backed sanctions of the sovereign.
• The sovereign formulates the commands and enforces sanction. These two explanations of term law cannot accommodate all the branches of law in existence.
• According to Salmond, law consists of a body of principles recognized and applied the state in the administration of justice. Law has also been defined as collection of binding rules of human conduct prescribed human beings for the obedience of human beings.
• Law may be described as an aggregate of rules enforced courts of law.
Constitution
• This is a body of basic rules and principles which a society has resolved to govern itself or regulate its affairs.
• It contains the agreed content of the political system and the basic structure of government e.g. Executive, Legislature and the Judiciary.
• It can be written or unwritten.
• Section 3 (1) (e) of the Judicture Act recognizes the constitution as a source of law of Kenya. It is the supreme law of the land and prevails over all other laws (Okunda and Another V. R (1970)
b) Sources of law in Kenya or you country
• Legislation or (statute law)
This is law made parliament directly in exercise of legislative power conferred upon it the constitution e.g. Judicature Act, Kadhis Court Act companies Act. It is recognized section 3(1) (b) of the Judicature Act as a source of law under the phrase:
• Certain Acts of the UK parliament applicable in Kenya.
• Certain Acts of Indian Parliament
• Certain Acts of Legislative council.
• Acts of the parliament of Kenya.
• Delegated legislation: It also referred to as sub-ordinate, indirect or subsidiary legislation.It is law made parliament indirectly. These are by-laws, orders, rules, regulations, proclamations made sub-ordinate bodies for example local authorities, professional bodies, Government ministers and statutory bodies in exercise of delegated legislative power conferred upon them parliament through an enabling or parent Act.
• Statutes of General Application: These are certain statutes enacted the U.K parliamentto regulate the conduct of the inhabitants of the UK generally. They are recognized as a source of law of Kenya section 3 (I) (c) of the Judicature Act. However their application as a source of law is qualified.
• Common Law: may be described as a branch of the law of England which was developedthe ancient common law courts from the customs, usages and practices of the English people. These courts applied the peoples way of life in the settlement of disputes theregiving such customs the force of law. It is an unwritten source of law whose application is qualified the section 3(I) (c) of the Judicature Act.
• Equity: Equity ordinarily means fairness or justice. It is that branch of the law of Englandwhich was developed the various Lord Chancellors courts to supplement the common law. It developed to mitigate the harshness of the common law. Its application is qualified section 3 (I) (c) of the Judicature Act.
• Case law of judge made law: These are principles or propositions of law made judgewhen deciding cases before them which are applied in subsequent similar cases. Judges make law when they formulate or enunciate principles or propositions of law where non- existed or in doubtful situations which are applied in subsequent similar cases. This source is recognized section 3 (I) (c) of the Judicature Act and has wide application.
• African Customary Law: African customary law is based on customs, usages and practicesof the various ethnic groups of Kenya. These customs and usages generally lack universality and so is African Customary Law. A custom embodies a principle a principle of utility or justice. However, not all local customs may be relied upon court of law in the settlement of disputes. A good local custom must be reasonable consistent with written law and must have been observed openly since time immemorial. It is recognized section 3 (2) of the Judicature Act.