NATURE, PURPOSE AND CLASSIFICATION OF LAW

Introduction
There are laws of physical sciences, laws of social sciences, moral laws and the
laws of the state. Our study is concerned with the laws of the state. Nature of
law consists of definition and characteristics of law.
DEFINITION OF LAW
Jurists have defined law differently from different point ... from time to time
and different scholars define the term variously.
Salmond’s definition of Law
“The body of principles recognized and applied by the state in the administration
of justice”.1
“A Law is a general rule of external human action enforced by a sovereign political
authority.” –Holland2
It may be concluded from the two definitions that law refers to a set or body of
rules to govern the conduct of affairs in a given community at a given time.

CHARACTERISTICS OF LAW
 A set or body of rules. The rules of law may originate from Acts of
parliament, customs, court cases and other acceptable sources.
 It regulates human conduct. The main reason of enforcing the law is for
the guidance of human conduct
 It applies to a specific community. Each community has laws governing
its people
 Enforcement. The rules of law must be capable of being enforced by the
police and the court. It’s violation leads to punishment.3
 Rules of law change. Law is not static; it keeps changing with time.
PURPOSES/FUNCTIONS OF LAW

1
. http://www.desikanoon.co.in/2012/08/the-nature-of-law.html accessed on 3RD July
2020

2
. https://www.srdlawnotes.com/2016/03/holland-definition-of-law.html accessed on 3RD
July 2020

3
https://www.quora.com/What-are-the-characteristics-of-law accessed on 3RD July 2020
 Regulates conduct of individuals by acting as a deterrent through the
issuance of punishment.
 Settlement of disputes for instance, Contract law sets out rules for making &
enforcing agreements.
 Guarantees fundamental rights and freedoms of individuals.
 Provides remedies to those whose rights have been violated.
 Provides both political and economic stability

 Directs Parliament on how to make laws.

 Sets up the structure of government- The Constitution assigns power & duties
to the various levels of government.
 Maintains Order & provides protection- prohibits certain acts & provides for
an authority-(police) to protect us. 4

CLASSIFICATION OF LAW

Written And Unwritten Laws

Unwritten law refers to the law based upon custom, usage, and judicial
decisions. An unwritten law may be collected, gathered or implied from under
statute, it need not be expressly evidenced in court decisions.5
Written law are laws that have been enacted by governments or have been
reduced into writing.6

International Law and Municipal Law

International Law
Further, it can also be classified as

1. Public international law: these are rules or law that governs relations of
states with others.7
2. Private international law: This is the law that is mainly concerned with rules
and principles that govern cases having foreign elements. For example,

4
https://schoolworkhelper.net/purpose-and-function-of-laws/ accessed on 9TH July 2020
5
. https://definitions.uslegal.com/u/unwritten-law/ accessed on3RD July 2020
6
. https://heinonline.org/HOL/LandingPage?handle=hein.journals/abaj17&div=12&id=&page= accessed on 3RD July
2020

7
https://www.lawyerssafari.com/blog/classification-of-law/ accessed on 9TH July 2020
 where there is a dispute between a Kenyan and Ugandan who happen to be
in Tanzania, it will be decided by the private international law.8
Municipal Law is Law of that nation. It is the law governing a country or a state.
It is also known as National law.9

Public Law and Private Law

Public Law is the law governing the relationship between the state and its
citizens. Examples are the constitutional law, administrative law and the
criminal law.10
Private Law is the law governing the relations between the citizens amongst
themselves. Examples are the law of contract, law of torts, law of property, law
of succession, law of trust and family law. 11

Civil Law and Criminal Law

Civil Law is a body of rules that governs relations between individuals amongst
themselves and covers areas of law such as contracts, torts, property, and family
law. 12
Criminal law refers to the laws that apply to crimes. Where an individual
commits a criminal act by breaking the law or fails to adhere to a particular
criminal statute, the criminal law applies. 13

DISTINCTION BETWEEN CIVIL AND CRIMINAL WRONGS

 A crime is a public wrong against the state while a tort is a private wrong
against an individual
 In a crime, the parties are the prosecutor and the accused. The prosecutor
represents the state while the accused is the offender who is being
prosecuted.
In a civil wrong, the parties are the plaintiff and the defendant. The plaintiff
is the aggrieved party who is suing while the defendant is the wrongdoer
who is being sued.
 There is no compromise in crimes while in civil wrongs parties are free to
compromise an action brought by one of them.

8
ibid
8.ibid
10
http://www.zakenya.com/politics/categories-of-laws-in-kenya.html accessed on7TH July 2020
11
http://www.duhaime.org/LegalDictionary/P/PrivateLaw.aspx accessed on 3RD July 2020
12
https://www.gcu.edu/blog/criminal-justice-government-and-public-administration/3-differences-between-civil-
law-and accessed on3RD July2020
13
https://study.com/academy/lesson/what-is-criminal-law-definition-purpose-types-cases.html accessed on6TH
July 2020
  In crimes, the prosecutor must proof the case against the accused, beyond
reasonable doubt while in civil wrongs, the standard of proof is on a
balance of probabilities and not beyond reasonable doubt.
 Usually there is punishment in crimes in the form of payment of fines,
imprisonment and death penalty in case of capital offences while the aim
of civil law is not to punish but to compensate the wronged party through
the award of damages.14

Substantive Law and Procedural Law

Substantive Law refers to the actual laws which govern how the facts of the case
will be accepted and presented or laws by which a crime may be charged. 15

Procedural law are the rules for regulating court procedures both in civil and
criminal trials. Examples are the law of evidence, Civil Procedure Code and
Criminal Procedure code. 16

LAW and MORALITY

The two can be compared in the following ways:
 Laws regulate the external human conduct whereas morality mainly
regulates internal conduct
 Laws are universal; morality is variable
 Laws are definite and precise while morality is variable
 Laws are studied under Jurisprudence but morality is studied under
ethics.
 Rules of law may be enforced by an action in the court while the rules of
morality cannot be enforced by an action in the court.
 The rules of law change while those of morality do not change.
However, there are some rules of law which are also rules of morality for example
theft. 17

Branches of civil law

14
https://www.coursehero.com/file/ppcn0c/Differences-between-criminal-and-civil-wrongs-Criminal-wrong-crime-
Civil-wrong/ accessed on 9THJuly 2020
15
https://legaldictionary.net/procedural-law/ accessed on 9TH July 2020
16
https://study.com/academy/lesson/procedural-law-definition-example.html accessed on 9TH July 2020
17
https://www.open.edu/openlearn/ocw/mod/oucontent/view.php?id=68341&section=references accessed on
8TH July 2020
 1. Law of contract
A contract is an agreement made between two or more parties that is legally
binding or enforceable by law. The law of contract basically determines whether
the promises or agreements made are legally binding.
2. Law of Tort
According to Salmond, a tort is a civil wrong for which the remedy is a common
law action for unliquidated damages and which is not exclusively the breach of
contract, breach of trust or other merely equitable obligation.
3. Law of Succession
This is a branch of civil Law which deals with the transmission of property
upon the death of a person to his heirs.
4. Law of property
Property means a personal belonging or what can be owned. The law of
property deals with the nature and extent of rights which can be enjoyed over
land and other properties.
5. Law of Trust
This law deals with various aspects of trust, among them the relationship
between a settlor, a trustee and a beneficiary.

SOURCES OF THE KENYAN LAW

A source of law refers to the origin of law which constitutes its legal principle or
law. Therefore, the sources of Kenyan law refer to the origin of the legal rules
that constitute the Kenyan law.18
Section 3 (1) of the Judicature Act provides that the jurisdiction of the High
court, Court of Appeal and all Subordinate courts shall be exercised in
conformity with:

(a) The Constitution;

18
https://www.tuko.co.ke/262861-sources-law-kenya-what-kenyan-law-based.html accessed on 12TH July 2020
 (b) Subject to the Constitution, all other written laws including the Acts of
Parliament of the United Kingdom.

(c) Subject to the Constitution and as far as those written laws do not extend or
apply the substance of the common law, the doctrines of equity and the statutes
of general application in force in England on the 12th August, 1897, provided
that the said common law, doctrines of equity and statutes of general application
shall apply so far only as the circumstances of Kenya and its inhabitants permit.

(d) Section 3 (2) of the Judicature Act permits the court to be guided by African
Customary Law only in “civil cases in which one or more of the parties is subject
to it or affected by it, so far as it is applicable and is not repugnant to justice and
morality or inconsistent with any written law.”19 Other sources include:

 Islamic law
 Subsidiary/delegated legislation
 Case law /judicial precedent

The Constitution of Kenya

A constitution is a public document, which regulates the relations between the

organs of the state as well as the relations between the state and the citizens.
According to Lord Bryce, the constitution consists of those rules or laws which
determine the forms of its government and the respective rights and duties of its
government and the respective rights and duties of it towards a citizen and of
the citizen towards the government.

The Kenya Constitution is a written constitution. It was originally enacted on

12th Dec, 1963, amended on 12th Dec, 1964 so as to establish the Republic of

19
Section 3 of the Judicature Act (Cap 8)
Kenya with a President as the head of state. Other amendments were made in
1969 and the current new constitution in 2010 which made a major shift in its
framework and values in that it created two levels of governance. A proposed
amendment to this Constitution shall be enacted in accordance with Article 256
or 257 of the constitution.

The constitution creates new institutions and new structures that demand for
new laws to function. Such institutions include Supreme Court, Constitutional
implementation commission, and judicial service commission, among others. It
also introduces concepts such as gender equality, and other new legal
requirements whose implementation demands that parliament make new laws.
The constitution is supreme and takes precedence over all other forms of law,
written or unwritten. If any other law is inconsistent with the constitution, the
constitution prevails and the other law to the extent of its inconsistency is
void.20

Legislation
This is the process of making law in Parliament. Parliament made law are called
Acts of Parliament. An Act of Parliament can also be referred to as a statute,
enacted law or legislation. The legislative authority is derived from the people
and it is vested in and exercised by the Parliament that is, the National Assembly
and the Senate.21 Parliament therefore represents the will of the people. Under
the Constitution, the Kenyan Parliament exercises its legislative authority by
passing bills.22 A Bill is a draft of proposed Act of Parliament.

20
The constitution of Kenya,2010
21
ibid
22
ibid
Types of Bills.

1) A private Member’s Bill: A Private Members' Bill is introduced by a Member

of Parliament who is not a minister but deals with matters affecting the public
generally. They are a type of Public Bill and should not be confused with Private
Bills.

2) A Public Bill: This bill is introduced and supported by the Government. It deals
with matters affecting the public generally and are usually introduced by a
government minister.

3) Private Bill: They are promoted by the group concerned. A Private Bill does not
affect the general public as a whole. It deals with issues which affect only a very
small number of people. For example, a Private Bill could deal with a matter
affecting a single local authority. It might be introduced, for example, to give a
Railway company the power to construct a new railway line in a particular area
of the country.23

Legislative process under the Constitution of Kenya 2010

First Reading: Every bill is read a first time without questions being put on the
order of the day for First Reading. The Clerk of the National assembly reads the
title of the bill and no debate ensues thereafter.24

Second Reading: On the order of the day of Second Reading, a motion shall be
made. The mover of the motion then explains and defends the bill. The general

23
https://www.open.edu/openlearn/society-politics-law/law/what-are-the-three-types-bill accessed on12TH July
2020
24
KENYA LAW REFORM COMMISSION, A GUIDE TO THE LEGISLATIVE PROCESS IN KENYA 69 (2015),
http://www.klrc.go.ke/images/images/downloads/klrc-a-guide-to-the-legislative-process-in-kenya.pdf, archived at
https://perma.cc/3APD-AFWU accessed on 13TH July 2020
principles of the Bill are discussed in detail and a debate begins. Members of the
House are allowed to take part in that debate.25

Committee stage: After the Second Reading, a Bill is committed to the Committee
of the whole house or to a select committee. A select committee means a few
members of the house have formed the committee. At this stage, the Bill is put
under a detailed scrutiny and analysis. If there are any amendments to be made,
they shall be made at the committee stage.26

Report Stage: At the Reporting stage, the chairman of the Committee submits
it’s report to the House. The amendments which were made at the committee
stage shall again be debated on. If the bill sails through, it goes on to the third
reading.

Third Reading: The stage may be taken immediately after report stage (after
adoption of the report) or on a later date as the Speaker may decide. At this stage,
there is a limited debate on the general principles of the bill. A final vote is taken
and if it sails through, then it will be deemed that the national assembly has
passed this bill.27

President’s Assent: No law passed by the national assembly shall become law
until the President has given his assent. Once a bill is passed by Parliament, it
is sent to the President’s desk for his assent; the President has fourteen days to
either sign it into law or refer it back to Parliament for reconsideration.28

According to the Constitution's Article 115, Clause 2-6 on Presidential assent

and referral, the following are the procedures taken by Parliament when a bill is
rejected:29

25
ibid
26
ibid
27
ibid
28
ibid
29
Ibid at 3
2. (a) Amend the Bill in light of the President’s reservations

(b) Pass the Bill a second time without amendment.

3. If Parliament amends the Bill fully accommodating the President’s

reservations, the appropriate Speaker shall re-submit it to the President for
assent.

4. Parliament, after considering the President’s reservations, may pass the Bill a
second time, without amendment, or with amendments that do not fully
accommodate the President’s reservations, by a vote supported:

(a) By two-thirds of members of the National Assembly

(b) Two-thirds of the delegations in the Senate, if it is a Bill that requires the
approval of the Senate.

5. If Parliament has passed a Bill under the clause (4) of the constitution:

(a) The appropriate Speaker shall within seven days re-submit it to the President

(b) The President shall within seven days assent to the Bill.

6. If the President does not sign or return the bill to Parliament within fourteen
days of receiving it, the bill is automatically enacted.

Advantages of Statute law/ an Act of Parliament

 It is democratic- An Act of Parliament represents the wishes of the people
in the sense that it is made by MPs who are the representatives of the
people.
 It enables Parliament find legal solutions to any problems that the country
may face by passing new Acts or amending the existing ones.
 It is dynamic since it can be changed as needs of the Kenya society change.
  It gives Kenyan an opportunity to debate the proposed law from the
moment they become aware of it after its publication in the Kenya Gazette.

Disadvantages of Acts of parliament

 Certain Acts are forced by few people and reflects the views of the
executive, or pundits in the ruling political party
 Acts of Parliament do not reflect the wishes of the people (voters) but the
wishes of the individuals who constitute Parliament at any given time.
 The process of legislation is rather very slow.
 Technical Bills may be passed into law without sufficient debate

Subsidiary Legislation

This is also known as delegated legislation. This law is made by persons or

institutions other than Parliament, pursuant to such powers to make law being
delegated to by parliament. Parliament delegates its law-making power to
certain persons, bodies, or institutions through specific statutes for example
professional bodies, the local authorities etc. Any diversion from the mother acts
or exceeds the ambit of the statutory authority; then the courts can declare such
a legislation ultra vires i.e outside the delegated powers and therefore void.

Reasons for Delegated legislation include:30

 Lack of time– parliament does not have all the time to discuss and analyse
all national matters.

30
Report of the Committee on Ministers’ Powers 1932, Cmnd 4060 [The Donoughmore Report]; adopted
in Report of the Delegated Legislation Committee [1962] AJHR I18 [Algie Committee].
  Urgency of some matters- Some matters are so urgent that they require
immediate attention and cannot be debated in parliament because
parliament is not always in session.
 Subject technicality- Some issues can be handled more effectively by
experts, e.g drug regulation will be better dealt with by the Kenya Medical
Association because of the technicality involved.
 Flexibility- There is flexibility in delegated legislation because if a by-law
or statutory order proves to be impracticable it can be revoked quickly. It
takes a long time to revoke an Act of parliament.

Criticisms or Disadvantages of Delegated Legislation are:31

 Lack of publicity
 Inadequate judicial control
 Difficult to determine which matters must be delegated and which ones to
be dealt with by the parliament
 Delegated powers are sometimes so wide such that the prevailing laws
become uncertain
 In some cases, powers given to the subordinates to make law ought to be
dealt with by parliament itself for example matters of imposing taxes
should remain in the hands of the parliament.
 Parliamentary control on delegated legislation is not adequate

The African Customary Law

The Court of Appeal, the High Court and all subordinate courts shall be guided
by African customary law in civil cases in which one or more of the parties is
subject to it or affected by it, so far as it is applicable and is not repugnant to

31
https://www.brainscape.com/flashcards/advantages-and-disadvantages-of-delegated-5904541/packs/8994785
justice and morality or inconsistent with any written law.32 Section 2 of the
magistrate’s court act defines a claim under customary law as a claim concerning
any of the following matters under African customary law:33

 Land held under customary tenure;

 Marriage, divorce, maintenance or dowry;
 Seduction or pregnancy of an unmarried woman or girl;
 Enticement of or adultery with a married woman;
 Matters affecting status, and in particular the status of women, widows
and children, including guardianship, custody, adoption and legitimacy;
 Intestate succession and administration of intestate estates,

So far as not governed by any written law.

JUDICIAL PRECEDENCE/CASE LAW

In the Oxford Dictionary of Law, Judicial precedence is defined as a “judgement

or decision of a Court used as an authority for reaching the same decision in
subsequent cases.34 It is the law pronounced by a judge.

There are two rules that apply to the doctrine of judicial precedents:35

1. The first rule says that a court which is lower in a hierarchy is completely
bound by the decisions of courts which are above it.

32
Ibid at 2
33
Section 2 of the magistrate’s act
34
J Martin. Key Facts English Legal System, (Routledge: London, 2014)
35
https://www.open.edu/openlearn/ocw/mod/oucontent/view.php?id=72115&section=1 accessed on
14THJULY2020
 2. The second rule states that where the court has correctly decided a case, then
all subsequent cases shall follow the decision as long as the facts of the cases
are similar.

Types of Judicial Precedents

The types of judicial precedents include;36

1. Declaratory Precedent

As John William Salmond explained, a declaratory precedent is one where

there is only application of an already existing rule in a legal matter. It is
applying or declaring an existing law without extending it.

2. Original Precedent

An original precedent is one where a new law is created and applied in a legal
matter. No other similar case has ever been decided and therefore the case is
being decided for the first time but basing the answer on the general principles
of the law’

3. Over ruling Precedent

To overrule means to quash or to nullify or do away with. Therefore, it implies

doing away with a decision that has already been decided by the court. The
rule as to over ruling is that a case can only be over ruled where it was
wrongly decided. A case can only be over ruled by the same court that set
the precedent or by a higher court.

36
ibid
 4. Distinguishing Precedent

In comparison with the mechanism of overruling, the main device for

avoiding binding precedent is that of distinguishing the previous case as
having different material facts and, therefore, as being not binding.
Material facts are those in any case which have legal consequences.

The ratio decidendi of any case is based upon the material facts of the case.
This opens up the possibility that a court may regard the facts of the case
before it as significantly different from the facts of a cited precedent, so it
will not find itself bound to follow that precedent. Judges use the device of
distinguishing where, for some reason, they are unwilling to follow a
particular precedent.

In law, to distinguish a case means to contrast the facts of the case before
the court from the facts of a case of precedent where there is an apparent
similarity.

Matters considered in connection with the doctrine of Precedent

 Ratio decidendi: – The decision and the reason for the decision

It’s not every part of a case that forms the ratio decidendi, the precedent
is set by the rule of law used by the judge or judges in deciding the legal
problem raised by the facts of the case. The ratio decided which is binding,
is the principle to be extracted from the case.37

37
http://kenyalaw.org/kl/index.php?id=7693 accessed on 14July 2020
  Obiter dicta: - Statements made by the way in the course of making a
judgement

Obiter dicta are not pivotal to the determination of the issue or issues at
hand, they are things said by the way or in passing by a Court.38 Any
statement of law that is not an essential part of the ratio decidendi39 in a
judgment of a case, is referred to as obiter dicta. Obiter dicta statements
are persuasive authority. Unlike the ratio decidendi, they are not
binding.40 For instance, obiter dicta may include the statements a lawyer
tells the judge in a criminal case to convince them of his client’s innocence,
in addition to the facts of the case.

 Stare decisis: (Latin: “let the decision stand”)

The term Stare Decisis is taken from the Latin maxim et non quieta
movere. It means to stand by precedent and not to disturb what is settled.
It may be called the doctrine of precedent or of authority meaning that
when a point of law has been once settled by the decision of a competent
court it will no longer be considered open to examination or to a new ruling
by the same tribunal or those which are bound to follow its adjudications.41

Advantages of Judicial precedent

The advantages include:42

(i) Legal certainty: The judge is bound to adopt precedents in similar matters
previously decided by a court of correct standing. Therefore, Litigants
have confidence in the future course that the court will take in resolving
legal problems of a similar nature.

38
ibid
39
Black’s Law Dictionary, entry on Dictum
40
Black, supra note 31, at 176.
41
file:///C:/Users/ADMIN/Downloads/5-6-48-509%20(1).pdf accessed on 14TH July 2020
42
file:///C:/Users/ADMIN/Downloads/f4botswa_2011_dec_a.pdf accessed on 14TH July 2020
 (ii) Precision: Reliance on statute alone would be insufficient because it could
never cater for the multiplicity of legal problems brought before the courts.

Case law contains a wealth of law which assists in the resolution of the
innumerable legal problems arising in different branches of the law.

(iii) Flexibility: The doctrine of precedent also allows for the development of
new principles by extension or analogy to meet new circumstances. This
is achieved by the possibility that unsound decisions can be overruled or
distinguished by the courts.

Disadvantages of Judicial precedents

The disadvantages include:43

i. Rigidity: The application of the doctrine may sometimes cause hardship to

litigants due to its rigidity. This is because rules are applied for long even
when they are outdated.

ii. Bulk and complexity: It becomes difficult to learn and apply the law due
to the vast number of reported cases.

iii. Danger of illogical distinctions: Sometimes it results in legal uncertainty.

For instance, when overly subtle distinctions are drawn by judges in order
to avoid applying an otherwise binding precedent or overruling it outright.

iv. Absence of precedent: Where there is no precedent, this doctrine breaks

down. A judge faced with a legal problem must then make law usually by
reference to analogous general principles of law for which there is a
precedent.

THE SUBSTANCE OF THE COMMON LAW AND DOCTRINES OF EQUITY

The substance of the common law, the doctrines of equity and the statutes of
general application in force in England on the 12th August, 1897, provided that

43
ibid
the said common law, doctrines of equity and statutes of general application
shall apply so far only as the circumstances of Kenya and its inhabitants
permit.44

Common law consists of ancient customs and usages of the English people. The
body of customary law, based upon judicial decisions and embodied in reports
of decided cases, that has been administered by the common-law courts
of England since the ancient times. The customs have developed gradually into
principles of law. It is the principles that constitute the common law. It was due
to the shortcomings of the common law that led to the development of equity.

These shortcomings include:

- Some Cases not having remedies available in the courts of law

- Remedies made available under common law were quite insufficient

- The procedure followed at common law was restrictive and cumbersome.

Ogeka Zacharia analyzed the Common Law and Doctrines of Equity as follows:45
Equity means fairness, justice, morality, fair play, equality etc. in the ordinary
sense. It means doing good, doing what is morally right. Equity refers to a body
of rules in the technical sense and some authors have defined equity as that
which is not the common.

Originally, there was only one body of law in England i.e the common law.
Common law was administered by the Kings of justices and is to be found in
case law that developed over the years. There were 3 courts then, the Court of
Common Pleas, the Exchequer and the Kings Bench.

44
Ibid at 2
45
https://ogekazacharia.blogspot.com/2017/12/equity-law-in-kenya.html accessed on 15TH July 2020
Under the Common law system there was the writ system where a person could
only get redress for their grievance if there was a writ disclosing the cause of
action. There was also the doctrine of precedence a part from the writ system. It
was felt that the common law system was very rigid at this point in time, i.e.
12th century. At the time there were also some defendants who were very strong
and at times would defy the courts’ orders and the Plaintiffs would be
intimidated. Those were medieval dark ages. Plaintiffs were not able to have all
their grievances addressed and therefore those aggrieved would go and implore
the King due to all these factors. If there was no remedy available or if the writ
was not recognized as a cause of action, the King would then exercise the extra
judicial powers. The King could also exercise extra judicial powers where there
was a failure to administer the available remedy.

This practice continued with people continuing to petition the King and this gave
rise to establishment of the Court of Chancery. At that time the court was
headed by the Chancellor as the King had requested the Chancellor to handle
those cases and the Chancellor would exercise his powers based on the notion
of conscience. He would then provide remedy if he felt a case required
intervention. There was a theory about conscience, or a notion of conscience
that was supposed to be based on rules of natural justice.

As time went on, some body of rules developed and Chancellors began to issue
remedies in similar cases. At that point a phrase referring to the Chancellor’s
foot was coined which was ‘equity is as long as the chancellor’s foot’ which meant
that equity was what the chancellor decided was equity. A body of rules called
Equity developed over time.
Where there was a common law rule but it was too harsh and if applied to the
letter the harshness would be unjust, the Chancellors also provided a remedy.
The remedy was to mitigate the harshness of common law. Equity would leave
the common law alone and would instead develop a new rule if the common law
rule was too rigid. In this instance, equity came to fill in the gaps left by common
law. Secondly, equity was seen as aiding and supplementing the common law.

The common law courts had power to award damages while the court of
chancery had power to award injunction and specific performance. The court of
equity had no power to award damages so there was a lot of rivalry between
common law courts and courts of chancery. Equity came in to mitigate injustice
by providing remedy that was not available in common law. The Court of
Chancery had almost exclusive equity jurisdiction; rules of equity were not
enforced in the common law courts until the Judicature Act of 1873.

Maxims of Equity

These maxims of equity are statements which embody rules of equity. They are
only guidelines and are not applied strictly in every case. They help us to
understand what the rules of equity are. They have no logical sequence and they
often overlap. Two maxims can actually say the same thing.

 He who seeks equity must do equity

This maxim means that a person who is seeking the aid of a court of equity
must abide with whatever conditions that the court gives for the relief and
be prepared to follow the court's directions. This is most commonly applied
in injunctions. The court will normally impose certain conditions for
granting the injunction.

 He who comes to equity must come with clean hands

The lease will be forfeited in the case of a tenant and a landlord and this
tenant defaults in paying rent. The common law position is that where the
lease is deemed to be forfeited, the landlord has a right of re-entry.
 If the tenant was willing to pay the rent that was outstanding, equity gave
relief against forfeiture and therefore the lease could continue. If the tenant
had clean hands, i.e. had not breached other terms, relief could be given.
This point is illustrated by the case of [Gill v Louis [1956] 2 QB. The
tenant had used the premises for a purpose that was not allowed under
the lease.

 Equity is equality (Equality is equity)

It applies to a situation where two or more people are entitled to the same
property and there is no other basis for division. Those who are entitled to
property should have certainty and fairness of equal division.
It applies to the division of property; where there are rival claimants to
property and there is no formula for sharing it out, i.e. no will. The law
steps in and it establishes certain rules that will guide the court. The first
rule is in relation to a presumption of a tenancy in common. That is equity
will make a presumption to joint tenancy as opposed to a common
tenancy.

 Equity imputes an intent to fulfil an obligation

If a person is under an obligation to perform a particular act and he does
some other act which is capable of being regarded as a fulfillment of this
obligation, that other act will prima facie be regarded as fulfillment of the
obligation.

 Equity will not assist a volunteer

Equity favors a purchaser for value without notice and not a volunteer (a
person who has not paid consideration). Exception to the application of
this maxim is in Trust.
  Equity will not suffer a wrong to be without a remedy
Ibis jus ibi remedium” There is a remedy, if there is a wrong. He who seeks
solace in the arms of equity will not go away broken hearted. Each party
has his or her share at the table of equity. If the wrong is capable of being
redressed by equity, the wrong should not be allowed to go underdressed.

 Equity does not act in vain

The court of equity is shy and does not want to be embarrassed by granting
remedies that cannot be enforced or issuing orders that cannot be obeyed
by the Plaintiff.

 Delay defeats equity or equity aids the vigilant and not the indolent
Where a party has slept on his right and acquiesced for a great length of
time a court of equity has always refused its aid to stale demands.
Conscience, good faith, and reasonable diligence can call forth this court
into activity but where these are wanting, the Court is passive, and does
nothing. Delay which is sufficient to prevent a party from obtaining an
equitable remedy is technically called “laches”.

Islamic law
The jurisdiction of a Kadhis’ court shall be limited to the determination of
questions of Muslim law relating to personal status, marriage, divorce or
inheritance in proceedings in which all the parties profess the Muslim religion
and submit to the jurisdiction of the Kadhi’s courts.46

Hindu law refers to the system of personal laws (marriage, adoption, inheritance, etc.),

traditionally derived from Hindu texts and traditions, that shaped the social practice of Hindu
communities. In modern India, Hindu law is still a part of the law of India established by the

Constitution of India (1950).

46
Sec. 5 of the Kadhis court Act
 INTERNATIONALLAW AND
RATIFIED TREATIES
Any treaty or convention ratified by Kenya
shall form part of the law of Kenya under
the Kenya Constitution 2010.
The core ILO conventions to which Kenya is
a member state are:

1. ILO CON. 29 – Forced labour ratified on 13th January 1964

2. ILO CON. 98 – Freedom of Association and Collective Bargaining 13th
January 1964
3. ILO CON. 100 – Equal remuneration for work of equal value 7thMay
2001
4. ILO CON. 105 – Abolition of forced labour 13th May 2001
5. ILO CON 111 – Discrimination in employment 7th May 2001
6. ILO CON. 138 – Minimum age of employment 9th April 1979
7. ILO CON. 182 – Worst forms of child labour 7th May 2001