Legal Methods

CATHOLIC UNIVERSITY OF EASTERN AFRICA LEGAL METHODS – 1ST TRIMESTER NOTES – LECTURER FREDA KABATSI Faculty Vision: To train the students in the Faculty of Law to become conscientious and ethical lawyers who have an excellent grounding in legal principles and who will provide leadership in Kenya, East Africa and beyond. OVERVIEW OF LEGAL METHODS * Legal Methods is the study of how law operates in the society and how lawyers, judges and legislative think and do things according to the law. It is commonly referred to a set of techniques used to analyze and apply the law and to determine the appropriate weight that should be accorded to different sources of law. SOURCES OF CLASSIFICATION OF LAW Means the origin from which human conduct comes into existence and derives legal forms. TERMS TO DEFINE AS SOURCES OF LAW 1.

Common Law 2. Equity 3. Customary Law 4. Religion 5. Criminal Law 6. Civil Law 7. International Law 1) COMMON LAW (also known as LAW OF PRECEDENTS) * Common Law if a legal system that is largely formed by the decisions previously made by the court and similar tribunals. It is also known as Case Law or Law of Precedents.

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* It is developed by Judges through decisions of courts. * It binds future decisions. * It is based on the principle that it is unfair to treat similar facts differently on different occasions. * This principle is known as staredecisis which literally mean “Let the decision stand”. HISTORY OF COMMON LAW * It is rooted in centuries of English history. * It began to develop after the Norman Conquest of England in 1066. * Matters which had previously been handled by tribunal courts began to be handled by the Kings Court.

The King’s Court evolved into a branch of professional justices who were royals with training in Canon of Roman Law. * They appeared periodically in all the countries around England. It was this moving that began the process whereby the custom of the King’s Court eventually became the law of England i. e. The Law Common to All. * The King’s Courts were the only courts in England. In order to bring matters before this court, a special request was made to a Royal official called Chancellor asking him to deliver a writ to the court. If a particular type of action was brought before the Chancellor often enough, the writ would acquire a common form.

* The prescribed form of writ for each type of action required strict adherence as did the oral pleadings which were required to follow the form of the writ. * Because of their dissatisfaction with Common Law and its system of writs, the people began to appeal to the King. The petitions were delegated to the Chancellor who established the Court of Chancery also known as The Court of Equity. * The decisions were based on natural justice derived from mutual laws.Overtime the Equity Law of Doctrine applied became additions to legal rules applied by Common Law Courts.

The dual system has continued up to present day. * The Common Law of Courts of Chancery are no longer separate courts, they were fused unto one court in the later of the 19th Century but their principles were not fused. * What happens in the Civil Court applies both Common Law and Equity. 2) EQUITY * It was developed after Common Law as a system to resolve disputes where damages were not suitable remedy and to introduce fairness into the legal system. It is based on judicial assessment of fairness as opposed to strict and rigid rules of Common Law. * It allows the court to use the discretion and apply justice in accordance with law. * An example of maxim equity “He who comes to Equity must come with clean hands”.

STATUTE * It is direct source of law. * It consist in the declaration of legal ruler by a competent authority e. g. Parliament. 3) CUSTOM A custom is a rule which in a particular community has from long usage obtained the force of law. It is usually not written and limited in its application.

4) RELIGIOUSIt implies ethical and moral codes taught by religious traditions e. g. Canon Law, Sharia Law etc. 5) CRIMINAL LAW 6) CIVIL LAW 7) INTERNATIONAL LAW *(SECTION 3 OF JUDICATURE ACT) (ARTICLE 2, CONSTITUTION 2010)* CLASSIFICATION 1) PRIVATE AND PUBLIC LAW * Public Law is a theory of law that governs the relationship between the state and an individual. It covers the following categories: -a). Constitution b). Administrative c). Criminal Law * Private Law is that which governs the relationship between individuals.

It includes the following: -a). Law of Tort b). Law of Contract c). Family Law ). Intellectual Property Law etc. 2) CIVIL AND CRIMINAL LAW * Civil Law is a form of Private Law and involves the relationship between individuals.

* It is the legal mechanism through which individuals can assert claims against others and have those rights adjudicated and enforced. * The purpose of Civil Law is to settle disputes between individuals and to provide remedies. * Criminal Law is an aspect of Public Law and relates to the conduct which the state considers with disapproval and which it seeks to eradicate. * The objective is to punish a wrongdoer and to deter other wrongdoers. ) INTERNATIONAL AND MUNICIPAL LAW * International Law is a set of rules that states and other international actors have an obligation to obey in their relation. * Municipal Law is the national domestic or internal law of a sovereign state. JUDICIARY * Judiciary is one of the three arms of government established under Chapter 10 of the Constitution.

* It is independent from the government functions and provides a forum for the just resolution of disputes. 1. THE SUPREME COURT – ARTICLE 163 * It is established by Article 163 of the Constitution. It is composed of the Chief Justice who is the president of the Court. * The deputy Chief Justice who deputizes the Chief Justice and is the Vice President of the Court.

It has five (5) other Judges. * The Court has exclusive original jurisdiction to hear and determine disputes relating presidential elections. * It has appellant jurisdiction to hear and determine appeal from: a) The Court of Appeal; b) Other Courts c) Tribunal prescribed by Parliament that relates to the interpretation; d) Application of the Constitution; e) Matters of public concern. * Summary Notes-Chief Justice heads the Court; The Deputy Chief Justice is his deputy and vice president to the court.

-Supreme Court deals with presidential petitions (special cases). -It consists of five (5) Judges 2. THE COURT OF APPEAL – ARTICLE 164 * It is provided by Article 164 of the Constitution; * The president of the Court of Appeal is elected from among the Judges of the Court; * The Court has jurisdiction and powers to hear and determine appeals from the High Court/Court Tribunal; * The Court of Appeal has not less than twelve (12) Judges 3.

THE HIGH COURT – ARTICLE 165, THE PRINCIPLE JUDGE It is provided by Article 165 of the Constitution; * It has original jurisdiction in Civil and Criminal matters; * It also has jurisdiction to determine whether a right in the Bill of Rights has been violated; * It has jurisdiction to hear any particular questions in respect of the Constitution (interpretation). The High Court has the following divisions namely: -i)Criminal Division ii)Family Division iii)Commercial Division iv)Constitution Division v)Judicial Review Division * Summary Notes-Act of Parliament describes the number of Judges; -High Court deals with Criminal and Civil cases; Matters dealing with interpretation; – 3 Judges handles or sits at the bench dealing with interpretation 4. MAGISTRATE’S COURT – ARTICLE 169 * The Magistrate’s Court are the sub-ordinate courts provided for under Article 169, 1 a) * They were created under the Magistrate’s Court Act.

* They handle Civil and Criminal matter depending on the rank of the Magistrates; * The hierarchy of the Magistrates in descending order includes 1)The Chief Magistrate 2)Senior Principle Magistrate 3)Principle Magistrate 4)Senior Resident Magistrate 5)Resident Magistrate 6)District Magistrate . KADHI COURTS AND PERSONAL STATUTES – ARTICLES 169 & 170 * It is provided for under Article 169, 1 b). * It deals with matters relating to personal status e. g. marriage, inheritance and divorce in which both party’s profess the Muslim Religion and submit to the jurisdiction of Kadhis Court; * The Constitution and jurisdiction of Kadhi’s Court are provided for under Article 170.

6. MARTIAL COURTS * Martial Courts deals with matters pertaining to the Army; * It is provided for under Article 169, 1 c) 7. SPECIAL COURTS/TRIBUNAL ESTABLISHED BY AN ACT OF PA It is provided for under Article 169, 1 b) of the Constitution; * It provides that any other Court or local tribunal as maybe established by an Act of Parliament other than the Courts established are required by Article 162 (sub-section 2); * Tribunals may be established under various laws made in parliament to deal with specific matters; * Litigants dissatisfied with a tribunal decision may appeal to the High Court e. g. Land Dispute Tribunal, Rent Restriction Tribunal etc.

* In addition to the Courts above mentioned, there are: – Children’s Court, Anti-Corruption Courts.THE LEGISLATION PROCESS – THE LAW MAKING PROCESS * Legislation Process refers to a series of steps that a policy must go through in order to become law; * A Bill or Draft Law may emanate/come from a line of ministry/ government department or any other institution mandated with the generation of Bills; * Often, the Kenya Law Reform Commission and the Attorney General works in line with the ministry/state department in the generation of a Bill; * The Draft Bills are then presented by the Attorney General to cabinet for approval.Cabinet if need be makes changes to the draft Bill which is then published/gazette by the Attorney General; * The Bill is then debated by Parliament under three (3) readings.

FIRST READING * The Bill is introduced into Parliament/Legislation Body. SECOND READING * Bill is read the second time; * A vote is taken to the general outline of the Bills before it is sent to the designated committee; * Considerations of the Committee between 2nd and 3rd readings. THIRD READING * The Bill is read with all its amendments and given final approval by the legislation body; * The Bill is then handed over to the president for ssent.

THE PRESIDENT ASSENT * The president assent to the Bill by signing it; * The Attorney General without delay publishes/gazettes the Bill; * It is after publication that the Bill becomes law. THE PRINCIPLE STARE DECISIS – BINDING PRECEDENTS * The reasoning and the decision in preceding cases are not simply considered with respect but are binding on later courts; * This is known as the principle of Stare RationibusDecisis (Stare Decisis) which translates simply as “Let the Decision Stand”. Stare Decisis applies to legal rule formulated in an earlier case where the rule is a ratio of the case; * Under doctrine of Stare Decisis the decisions of the Higher Court within the same provincial jurisdiction acts a binding authority on a Lower Court within the same jurisdiction; * In his book ‘Learning the Law’ by Glanville William (1973) describes Stare Decisis as follows: – what the doctrine of precedents declares is that cases must be decided the same way when the material facts are the same. Obviously, it does not require that all the facts should be came.

We know that influx of life all the facts of a case will never recur but the legally material facts may recur and it is with this that the doctrine is concerned; * The doctrine of StareDecisis is related to justice and favour for it would be unjust for two similar individuals in similar circumstances to be treated differently; * The critics of this doctrine such as MR (Master of Rolls) Lord Denning have stated that “if lawyers held to their precedents too closely forgetful of the fundamental principles of truth and justice which they should serve; they may find the whole edifice come tumbling down upon them; just as scientists seek the truth, so the lawyers should seek for justice.Just as proposition of scientists fails to be modified when shown not to fit on instances, so the principles of the lawyers should be modified when found to be unsuited to the times or when found to work injustice”. * In Summary: StareDecisis, which means “Let the Decision Stand” was used in Common Law when referring to judgment that were passed in similar cases with material facts.

It operates on hierarchy of courts where it only applies within the states jurisdiction. RATIO DECIDENDI – REASON FOR DECIDING * RatioDecidendi is one of the two statements of legal rules in a case, the other one being Obiter Dictum; * RatioDecidendi is the main statement of the law in a case.It is a rule of law expressly or impliedly treated by the Judge as a necessary step in reaching conclusion having regard to the line of reasoning adopted by him/her. * Prof. Goodheart AL (1930) pointed out that the ratio is practical terms inseparable from the material facts.

He observed that it is by this choice of material facts that the Judge creates law; * Lord Halsbury (1901) state “every judgment must be read applicable to the particular facts proved since the generality of the expressions which may be found there and that not intended to be the expositions of the whole law but governed a qualified by the particular facts of the case in which such expressions are to be found; * An example of ratio in case of Donoghue vs.Stevenson (1932) is the principle of the duty of care to those a person can reasonably foresee will be affected by his/her action. * Identifying ratio in a case may be difficult; Judges are under no obligation to label the different part of their judgments as ratio or obiter. Some of the reasons for this difficulty include the length of judgment, the existence of multiple lines of argument, uncertainty regarding which facts are material to the judgment etc; * In Summary:RatioDecidendi means the rationale behind a court’s decision i. e.

The Reason. OBITER DICTUM * ObiterDictum is a rule of law stated in a case which is not the basis of the decision.It is therefore not part of the ratiodecidendi; * It is any legal residue left after the ratio has been extracted, it may be for example a rule which has not been deliberated upon by the Court, a hypothetical statement of the law, an observation in the course of an argument or unstated assumption under the rule StareDecisis; * Obiter Dictum is not binding on a later Court but may have a persuasive authority; * In Summary:Obiter Dictum are remarks of judge which are not necessary to reaching a decision, but are made as comments, illustration or thoughts. Courts are not bound by them but lawyers use them as persuasive authority. PERINCURIUM * It is a term referred to when a Judge makes a decision ignoring the law. A Judge in the later Court will say it’s “perincurium” because the previous judge should have applied the law and makes a different ruling from the previous one.

* PerIncurium is a mistake or ignorance of law by a Judge in making a judgment 30th May 2012THE PRINCIPLE OF STARE DECISIS – LET THE DECISION STAND (BINDING PRECEDENTS) * The reasoning and the decision in preceding cases are not simply considered with respect but are binding on later courts; * This is known as the principle of Stare RationibusDecidendi also known as Stare Decisis which translates simply as “Let the decision stand”; * Stare Decisis applies to a legal rule formulated in an earlier case where the rule is a ratio of the case; * Under the doctrine of Stare Decisis, the decision of the Higher Court within the same provincial jurisdiction ; * In his book Learning the Law, Glenville William [1973] describes Stare Decisis as follows: – “What the doctrine of precedent declares is that cases must be decided the same way when their material facts are the same. Obviously, it does not require that all the facts should be same. We know that influx of life, all the facts of a case will never recur but the legally material facts may recur and it is with this that the doctrine is concerned”.

The doctrine of Stare Decisis is related to justice and fairness for it would be unjust for two similar individuals in similar circumstances to be treated differently; * The critics of this doctrine such as Lord Denning MR (Master of Rolls) have stated “if lawyers held to their precedents too closely forgetful of the fundamental principles of truth and justice which they should serve, they may find the whole edification comes tumbling down upon them just as scientists seeks for truth so the lawyer should seek for justice”; * Just as the proposition of scientific fails to be modified when shown not to fit on instances so the principles of the lawyer should be modified when found to be unsuited to the times or when found to work injustice. RATIO DECIDENDI – REASON FOR DECIDING * Ratio Decidendi is one of the two (2) statutes of legal rules in a case, the other being obiter dictum; * Ration Decidendi is the main statement of the law in a case.It is a rule of law expressly or impliedly treated by the judge as a necessary step in reaching conclusion having regard to the line of reasoning adopted by him/her; * Prof. Goodheart AL [1930] has pointed out that the ratio practical terms are inseparable from the material facts. He observes that it is by this choice of material facts that the judge creates law; * Lord Halsbury [1901] states “every judgment must be read applicable to the particular facts proved, since the generality of the expressions which may *be* formed there and not intended to be the expositions of the whole law but governed, and are qualified by the particular fasts of the case in which such expressions are to be found; * An example of ratio in Donoghue vs.Stevenson [1932] is the principle of the duty of care to those a person can reasonably foresee will be affected by his or her action. Identifying a ratio in a case may be difficult.

Judges are under no obligation to label the different parts of their judgment as ratio or obiter. Some of the reasons for this difficult include the length of judgments, the existence of multiple lines of argument, uncertainty regarding which facts are materials to the judgment. OBITER DICTUM * Obiter Dictum is a rule of law stated in a case which is not the basis of the decision. It is therefore not part of the ratio decidendi. It is any legal residue left offer the ratio has been extracted.

It may be for example a rule which has not been deliberated upon by the court, a hypothetical statement of law, an observation in the course of an argument or unstated assumption under the rule of Stare Decisis, Obiter is not binding on a later court but may have persuasive authority. 6th June 2012 STATUTORY INTERPRETATION * Traditional analysis of rules and principles of Statutory Interpretation are important. They are part of the explanation for how statutes are interpreted by lawyers and judges. LITERAL RULE * If the words of an Act are so inflexible that they are incapable of having but one meaning then the court must apply that meaning. This Rule prescribe the plain, ordinary, grammatical, natural meaning of the words in a statute: – R vs. Judge of the City of London (1892) It was held that is the words of an Act are clear then, you must follow them though they may lead to manifest absurdity.This approach has some problems. * The first is that courts rarely if ever interpret words in statutes instead they give meaning to phrases, sentences and section of statutes; * The second is that the Literal Meaning is never literal meaning, it is at the end of the day an interpretative meaning a section has to be consciously or unconsciously to prefer one of the several possible literal meaning; * An advantage however is that it encourages the precision in drafting of statutes GOLDEN RULE * Given the limitation of the Literal Rule, the judiciary started considering other principles of statutory interpretation: – River Wear Commissioner vs.

Adamson (1977)Lord Blackburn attributed the Golden Rule to Lord Wensleydale and stated “we are to take the whole statutes together and construe it all together giving the words their ordinary signification unless when applied, they produce an inconsistency or an absurdity so great as to convince the court that the intention could have been to use them in their ordinary signification and to justify the court in putting them in some other signification which though less proper in one which the court thinks the words will bear. * Therefore if the use of the Literal Rule would lead to an absurdity or repugnant result then the Golden Rule may be used; In Grey vs. Pearson (1857)Lord Wensleydale stated “the ordinary sense of the words is to be adhered to unless it would lead into an absurdity when the ordinary sense maybe modified to avoid the absurdity but no further”. In R vs. Sigsworth (1935) A statute provided for the distribution of an estate of an intestate among the next of kin, a mad murdered his mother.

The court applied the principle of public policy which prevents a murderer from reaping from his crime and decided that such a case, a person would not benefit from the statute. * The thrust of the Golden Rule is to consider an interpretation of a statute in light of its effect. MISCHIEF RULE * It the oldest rule It was established in Heydon’s case (1584). The Barons of the court laid down four (4) principles that are to be considered: – 1) What was the Common Law before the making of the Act; 2) What was the mischief and defect for which the Common Law did not provide; 3) What remedy the parliament hath resolved and appointed to cure the disease of the Common Law; 4) The true reason of the remedy and then the office of the judges is always to make such construction as shall suppress the mischief and advance the remedy and suppress subtle inventions and to force and breath life to cure and remedy according to the true intent of the makers of the Act The Mischief Rule goes further than the Golden Rule or Literal Approach it allows for a much broader investigations into the position of the statute in relation to the law taken as a whole; * It gives the court more latitudes in their construction of the statute. The courts attention is focused more on the purpose of the statute and the intention of legislation: – In Smith vs.

Hughes (1960) The Defendants were prostitutes who had been charged under the Street Offence Act (1959) which made it an offence to solicit in a public place. The prostitutes were soliciting from private premises in windows and balconies where they could been seen by the public. The court applied the Mischief Rule in holding that the activities of the prostitutes were within the Mischief of the Street Offence Act. RULES OF LANGUAGE EJUSDEM GENERIS Where there is a list of words followed by general words then the general words are limited to the same kind of article as the specific words of the same kind. A word will take its meaning from the foregoing word; Powell vs. Kenton Park Race Course (1899) AC 143 The House of Lords had to decide whether section 1 of the Betting Act of 1853 which prohibited the keeping of a house office, room or other places for the purpose of Betting applied to an outdoor ring. The court said it did not because all the specific places mentioned were indoors. However, the court stated that if the word “other place” had been followed by words like whatsoever this rule would not apply THE EXPRESSIOUNIUSEXCLUSIOATERIUS – THE EXPRESS WORD RULE The mention of one thing excludes the other where there is a list of specific words but no general words then, it must be on the list for the Act to apply; Tempest vs.

Kilner A fraud statute provided that for a contract over ? 10 for the sale of ‘Goods, Wares, and Merchandise’. The contract had to be in writing. The contract in question was for the sale of stocks and shares. The court held that this contract needs to be in writing because it was not for the goods wares and merchandise. In Dean vs. Wiesengrand (1955) The Court of Appeal held that unless there are clear words to take away a right from the tenants heirs such a right must pass on to them in death.

The facts of the case were as follows, after the death of a tenant of a rent controlled flat who paid to the Defendant landlord as rent a sum in excess The executors of the estate claimed to recover the excess rent. His action was dismissed on grounds that the increase of Rent and Mortgage Act while giving the tenant the right to recover the excess rent restricted that right to the tenant and that right was destroyed by the death of the tenant. NOSCITUA A SOCIIS * A word is known by the company it keeps if the meaning of the word in unclear, it will be determined on the basis of the other words surrounding it; In Inland Commissioner vs.

Frere (1965) The issue was the correct meaning of the word interest, the words of the section read “Interest, Annuities or other Annual Interest”.The court held that the word interest on its own could have meant daily, monthly or annually interest but because of the presence of the words “other interest” in the same section interest only annual interest…. PRESUMPTIONS * Presumptions are made by certain assumption made by courts. They are used only as starting point if they are disapproved then the presumption is reverted. Examples of presumptions are: – 1) Legislation does not apply retrospective; 2) Men rea is required in criminal case; 3) A statute will not change Common Law etc.

INTRINSIC AND EXTRINSIC AIDS * An Intrinsic Aid is one that is from the inside of the Act of Parliament which makes it clear for one to interpret a statute. They include: – 1) The long title of the Act 2) A short title 3) Preamble ) Section heading and marginal notes * An Extrinsic Aid is one from outside the Acts of Parliament. They include: – 1) Dictionary 2) Previous Acts on the same topic of Acts in PariMateria 3) Earlier case law 4) Hansards 5) Official Report from law provision 4th July 2012 LOGIC AND LEGAL REASONING * The dictionary defines logic as the science of reasoning, thinking proves or inference. It is an accurate form of reasoning, its roots is the Greek word logos which means reasons.

There are two (2) main types of logic: – 1) Deductive Logic, and 2) Inductive Logic And in addition a third time known as abductive logic DEDUCTIVE LOGIC ALSO ARGUMENT OR REASONING Deductive reasoning begins with the assertion of a general rule and precedes from there to guarantee conclusion which may be a general or a particular conclusion; * A conclusion obtained through the deductive reasoning is certain mathematics is based in deductive reasoning. A deductive statement is always true because it is true by definition. INDUCTIVE LOGIC * This involves arguments that put forward some general proportion or conclusion from facts that seem to provide some evidence for general proposition or group of proposition. This is perhaps the closest to the everyday legal argument when decisions are made concerning which side of a dispute is accorded the privilege of their story in terms of law authority to provide declaration of right sanction or compensation. * Inductive Reasoning is similar to Deductive Reasoning in so far as the conclusions are based on premises.However in Inductive Reasoning the conclusion reached extends beyond the facts in the premises.

The premise supports the conclusion and makes it probable therefore there is less certainty and it is possible that other conclusions exist; * Subdivision of Inductive Reasoning is reasoning by analogy these being the method best known to the English Legal System. The difference between Inductive and Deductive Reasoning is that Deductive Reasoning is that Deductive Reasoning is a closed system of reasoning from general to general and to particular. It is therefore analytical whereas Inductive Reasoning is an open particular case in conclusion which suggests the end process is in conclusive. ARGUMENT ANALOGY This is the most common form of argument in law the English word analogy is derived from the Greek word “analogia” meaning a quality of ratio or proportion in English analogy means similarity or resemblance; * Analogy treats cases as like where they have material resemblance, such an argument begins stating that two (2) objects are observed to be similar by a number of attributes. It is then concluded that the two (2) objects are similar with respect to a third.

The strength of such an argument will depend on the degrees of the relationship. VALIDITY * Validity is a structural or formal feature of an argument. It has nothing to do with the actual truth falsity of the argument premises. A valid argument is one in which the conclusion follows conclusively from the premises