1.1 Nature, purpose and classification of law

1.1.1 Definition key terms

1.1.1.1 Law

The meaning of law has been captured and outlined by different philosophers, as shown below:-

• According to McInnes, Kerr, and Van Duzer: “Law is “a body of rules set that the courts can enforce.”
• According to Yates: Law is a body of regulations enforced by the courts or other government agencies,” 
• According to Smyth, Soberman, Easson, and McGill: “Law establishes rules of behavior that the government enforces.”
• According to Salmond Law is a body of principles recognized and used by the state in the dispensation of justice.”
• According to Holland:  Law refers to the rules of external human action enforced by a sovereign political authority.
• According to John Austin: Law is a collection of rules established and enforced by a sovereign power. 
• According to Hart: Law is a coercive weapon for regulating social behavior
• According to DuPlessis and O’Byrne: “Law is a system of rules and principles that direct societal conduct, principally by safeguarding persons and their property, promoting personal and commercial relationships, and offering methods for dispute recognition.

1.1.1.2 The jurisdiction of the state

• Jurisdiction refers to the power of a state to affect persons, property, and circumstances within its territory.
• It may be exercised through legislative, executive, or judicial actions.
• In its broadest meaning, a state’s jurisdiction refers to its legal authority to act, and hence to its ability to decide whether and how to act, whether through legislative, executive, or judicial means.
• In this meaning, jurisdiction refers to the legal authority to make and enforce rules, but not exclusively.
• International law concepts governing state jurisdiction reflect both sovereign independence (Sovereignty) and sovereign equality (States, Sovereign Equality), as well as the human rights of those affected.

1.1.1.3 Enforcement

• Enforcement is the proper execution of the process of ensuring compliance with laws, regulations, rules, standards, and social norms.
• Governments attempt to effectuate successful implementation of policies by enforcing laws and regulations.
• Law enforcement is the activity of some members of the government who work together to enforce compliance by identifying, discouraging, rehabilitating, or punishing those who break the society’s laws and standards.
• The word refers to the police, the courts, and the correctional system.
• Through the utilization of record sharing and mutual cooperation, these three components can work independently or together.

1.1.2 Nature of law

• The broad question about the nature of law assumes that law is a distinct social-political phenomenon with more or less universal qualities evident through philosophical investigation.
• The philosophical research into the nature of law known as general jurisprudence is designed to be universal.
• It assumes that law has specific characteristics.
• The nature of law can be seen in the following points:-

1. It is a set of rules.
2. It regulates human behavior.
3. It is developed and maintained by the state.
4. It observes a certain level of stability, fixity, and uniformity.
5. It has elements of coercive authority.
6. Its violation leads to punishment.
7. It is the expression of the people’s will and written down for definiteness.
8. It helps guard the country’s sovereignty.

1.1.3 Purpose of law

• Law is necessary in civil society to maintain order and determine what is acceptable and wrong in human behavior and corporate activities based on a community’s beliefs and circumstances.
• Among the purposes business law serves include:-

1. Defining general rules of commerce
2. Protecting business ideas and assets
3. Providing mechanisms that allow business people to decide how they will participate in business ventures and how much risk they will bear
4. Ensuring that losses are borne by those who cause them
5. Providing mechanisms that allow business people to determine how they will participate in business ventures and how much risk they will bear.
6. It encourages peaceful cooperation, upholds the rule of law, and prevents anarchy.
7. It is a technique for establishing and controlling standards. Law establishes norms of behavior and conduct.
8. It safeguards rights and enforces obligations by giving redress when these rights or obligations are violated.
9. Facilitates and enforces private decision-making with legal weight.
10. It is a tool for resolving social conflicts.
11. It is in charge of and structures government authority: Various organs of government are governed by rules of law, which impose powers on them. Thus, the law establishes a government with limited powers.
12. Developing Standards. This law serves as a guideline for society’s minimum acceptable behavior.
13. Dispute Resolution. In a society made up of people with diverse interests, needs, values, and so on, disagreements are unavoidable.

• In conclusion, Law is made up of regulations established by a government to regulate human behavior in society.
• It is a set of rules that controls and governs the relationship between the state and its residents and between citizens and others, enforceable by the courts.

1.1.4 Classification of law

1.1.4.1 Administrative law

• The law dealing with public administration is known as administrative law.
• Administrative law is the law relating to the executive branch of government.
• It is the law that governs the conduct, administration, and execution of public affairs and responsibilities.
• Administrative law is concerned with how the government goes about performing its duties.
• Administration refers to the act or process of administering, which involves dispensing, managing, monitoring, and carrying out government functions.
• Administrative law, therefore, is the law that governs the exercise of governmental power.
• It is also known as the body of broad principles that regulate how public authorities perform their powers and obligations.
• The primary goal of administrative law is to restrict government authorities within legal limitations to safeguard citizens from misuse.
• Administrative law also deals with the management and administration of public service delivery.
• It is concerned with the manner in which the government performs its duties.
• The government’s responsibilities include providing public services such as health, security, trade facilitation, dispute resolution, and revenue collection.

The law deals with a variety of things e.g.

1. The formation of public authorities, public bodies and organs.
2. The nature of the duties assigned to various government bodies and organizations.
3. The legal relationship between public bodies, public bodies and the general public and between public bodies and citizens.

1.1.4.2 Revenue law

 These are  law relating to the imposition or collection of taxes to defray the expenses of government.

1.1.4.3 Criminal law

• Is the Law of crimes.
• A crime is any act or omission that violates the law, such as murder.
• The legislature enacts all criminal laws through statutes.
• A person accused of committing a crime is referred to as a criminal.
• Following his capture, the suspect is charged and becomes the accused in a fair and independent court of law.
• The Attorney General’s office frequently prosecutes criminal cases.
• Therefore they’re labeled R (the State) Vs. Accused, as R v Otieno.
• If the accused pleads not guilty, the prosecution must establish its case against him by introducing evidence, i.e., the prosecution bears the burden of proof in criminal proceedings. “Beyond a reasonable doubt” should be the proof stand.
• Imprisonment, fines, probation, and community service are some of the penalties. 
• Even if the immediate victim is a person, criminal law deals with action recognized as a crime against the public, society, or state.

Examples under criminal law include:-

1. Murder,
2. Treason
3. Violence,
4. Theft, and
5. Drunk driving

1.1.4.4 Civil law

• Is concerned with the rights and responsibilities of individuals and actions that harm an individual or another private party, such as a company.
• The following are some of the branches of civil law: –

1. Contract law is the law that governs contracts. 
2. Tort law is a branch of law that deals with wrongs
3. The property law 
4. Marriage legislation 
5. Inheritance law 

• A cause of action is created when a person’s civil or private rights are violated.
• Causes of action include: –

1. Contractual Breach 
2. Defamation Assault Negligence 

• Parliament uses trespassing on products and tutees and common law and equity to create causes of action.
• When a person’s civil rights are violated, a civil complaint or action is filed.
• Because the person who allegedly violated rights sues the accused offender, civil processes are structured as Plaintiff v Defendant.
• It is the plaintiff’s job to prove the defendant’s allegations.
• This means that the plaintiff is responsible for proving their case.
• The standard of proof in civil cases is based on a balance of probabilities or a weight of the evidence meaning that the defendant must convince the courts that the plaintiff’s claims are more likely than improbable to be true.
• If the plaintiff can prove his claims with evidence, he wins the lawsuit and receives a judgment, which could be in the form of:-

1. Damages (monetary compensation)  
2. Injunction 
3. Specific performance 
4. Dissolving a business 
5. Receiver’s appointment 

Differences between civil wrong and crime

1.1.4.5 Common law

• A body of unwritten laws based on legal precedents established by the courts is known as common law.
• Common law plays a role in the decision-making process in exceptional instances where the outcome cannot be determined by existing statutes or written norms of law.
• Common law, also known as case law, draws from institutionalized opinions and interpretations from judicial authorities and public juries.
• Common laws sometimes inspire new legislation to be enacted.
• Common law relies on detailed records of similar situations and statutes because no official legal code can apply to a case at hand.

Characteristics of Common Law

1. A written constitution or codified laws are not always present;
2. Judicial rulings are final – the highest court’s judgments may usually only be overturned by the same court or by legislation;
3. Extensive contract freedom – little legal provisions are implied into contracts (however, provisions aimed at protecting private consumers may be implied);
4. In general, anything that is not expressly prohibited by law is allowed.

1.1.4.6 Statutory law

• Statutory law , also known as statutes ,is created and passed by the legislative branch of the government.
• In their most basic form, statues are written laws that can be looked up or located in databases or books.
• These come in the form of bills or acts.
• These statutes are often codified, meaning that they are numbered, collected, and indexed in one place.
• After statutory law is created, the judicial branch of the government interprets and enforces it by applying it to court cases. However, the judicial branch can’t create statutory laws.
• Statutes are created from bills that are proposed to a specific legislative authority.
• They are subjected to a process in which they are examined by legislative committees and if approved, the bill becomes a statutory law after final approval by the executive officer.

1.1.4.7 Constitution law

• Constitutional law is a body of law which defines the role, powers, and structure of different entities within a state, namely, the executive, the parliament or legislature, and the judiciary; as well as the basic rights of citizens and, in federal countries .
•  Constitutional law deals with the fundamental principles by which the government exercises its authority. In some instances, these principles grant specific powers to the government. 
• Constitutional law evolves over time as it is interpreted by the courts and legislative bodies. The protection of human rights and civil liberties are common elements of constitutional law.

1.1.4.8 Private and public law

Public Law:

• Comprises those areas or branches of law in which the state, as sovereign, has a direct interest.
•   It asserts the sovereignty of the state.
• The state’s activities are governed by public law.
• It determines and governs the state’s organization and functioning and the state’s relationship with its subjects.

The following are subcategories of public law: –

1. Constitutional Law: Is the body of law that establishes the nature of the state and the government’s organization. It has supremacy over the general law of the land. It explains the anatomy and function of the state’s three organs. The value of ordinary law is derived from constitutional law.
2. Administrative law: Refers to the body of legislation that permits the establishment of governmental regulatory agencies and encompasses all laws, court decisions, and rules. Administrative agencies produce this law to put their authorities and responsibilities into action through rules, regulations, orders, and judgments.
3. Criminal Law:  It is the body of legislation that defines criminal offenses, governs suspect cognizance, charges, and trials, and establishes the procedures of punishment and treatment for convicted offenders. Its goal is to deter crime and punish those who commit it.

Private Law:

• Comprises those fields of law in which the state/sovereign has no direct interests.
• Instead, it is concerned with the legal interactions between people in everyday transactions, such as contract, property, succession, and tort.
• Its the branch of law that deals with private people’s rights and responsibilities, as well as their interactions.
• Individuals, families, corporations, and small groups have rights and obligations under private law to aid residents in private law conflicts.

Private law is further divided into the following categories: –

1. Law of the person
2. The law of property
3. Liability laws and conflict laws

Liability law is separated into three categories: –

1. Contracts
2. Quasi-contract
3.  Torts

Difference between public and private laws

1.1.5 Law and morality

Law

• The Law, is a set of rules formed and enforced by social or political institutions to regulate behavior, and its precise meaning has long been a source of contention.
• It’s been called a science and an art, among other things.
• State-enforced laws can be enacted by a group of legislators or a single lawmaker, resulting in statutes; by the executive, through decrees and regulations; or by judges, mainly in common law jurisdictions, through precedent.

Morality

• Morality is the ability to distinguish between right and wrong by referring to society’s specific norms acquired through time.
• It consists of commonly accepted social standards of behavior (societal prescriptions) obligatory on the members’ consciences.
• As a result, any conduct deemed to be against morals will be frowned upon by that community.
• Morality is not enforceable in a court of law.
• This is in contrast to legal rules, which are always binding, enforceable, and sanctioned.
• Thus, wrongdoings in society are violations of the law, morality, or both.

The Distinction Between Law and Morality

• According to Arndts, there are four points of distinction between law and morality:-

1. Law is concerned with individual liberty, whereas morality deals with the collective ideas of good and bad.
2. Law regulates the conduct of a man as long as he is a member of a specific community, whereas morals guide the conduct of man even when he is all alone.
3. Laws consider the external acts of a man, whereas morals look towards factors such as inner determination and direction of the will.
4. Law is enforced by way of “external coercion,” whereas morals appeal to an individual’s free will.

1.1.6 Sources of law
1.1.6.1 The Constitution of Kenya 2010

• This is a set of fundamental norms and principles that society has decided to govern or regulate itself. It includes all of the political system’s agreed-upon contents. It establishes the foundations of government. 
• A constitution is a public document that governs the State’s relations with its citizens and the State’s organs. It is a collection of the fundamental rules and principles a society has decided to control or regulate itself.
• It includes the political system’s agreed-upon contents. A constitution defines the essential framework of governance. The Kenyan Constitution serves as the foundation for all other laws. Any law that violates the Constitution is null and void.
• Article 2 (4) of the Constitution provides ” any other law inconsistent with the Constitution, the Constitution shall prevail, and the other law shall be void to the extent of the inconsistency”. Any inconsistent law can be passed if only the Constitution is first amended by the voles of not less than 65% of all the members of the National Assembly and supported by Presidential assent.

Supremacy of the Constitution 

Supremacy of the Constitution, as provided for under Article 2 and states the following:-

1. This Constitution is the Republic’s supreme law, binding all citizens and government entities at all levels.
2. Except as expressly authorized by this Constitution, no one may claim or execute State authority.
3. No court or other State organ may contest the Constitution’s legitimacy or legality.
4. Any law, including customary law inconsistent with this Constitution, is null and void to the extent of the inconsistency, and any conduct or omission that violates this Constitution is invalid.
5. Kenya’s law shall incorporate the general standards of international law.
6. Under this Constitution, any treaty or convention that Kenya ratifies becomes part of Kenyan law.

Classifications of the Constitution

Constitutions may be classified in various ways:-

1. Written and Unwritten:

• An unwritten constitution does not have a single document containing all of the provisions of the Constitution.
• Instead, this form of Constitution is written in part and spoken in the region.
• An unwritten constitution, like common law and customary law, emerges from many years of practical experience and the people’s political philosophy.
• A written constitution is included in a single document and can be quickly obtained and consulted on any subject.
• Because of the inconvenient nature of amending a written constitution, it is usually strict.
• It can, however, be changed if it is proven to be required.

2. Rigid and Flexible:

• A flexible constitution can be updated or changed without going through a lengthy process.
• Instead, a simple majority of the members of the parliament can alter this form of the Constitution, just like any other statute.
• A rigid constitution is a form of a Constitution with lengthy or burdensome modification procedures.
• The procedure for amending a strict constitution differs from creating and revising ordinary laws of the land.

3. Unitary and Federal Constitution:

• A unitary constitution stipulates that political powers should be concentrated on a single central authority that does not share abilities with other leaders in the country and instead delegated powers to regional, local, and other subordinate entities.
• To put it another way, in a unitary constitution, all government authorities are concentrated in the central or national government, which is the sole source of power.
• A federal system of government, on the other hand, is an association of free states in which power is constitutionally shared among federal, state, and local governments, with each tier performing its constitutionally given rights and functions.
• A federal constitution establishes different government structures at the national, state, and local levels, each with its own set of constitutionally allocated powers and responsibilities.

4. Republican and Monarchical Constitution:

• A republican constitution establishes the position of President, an elected head of State who serves for a specified period of office.
• A monarchical constitution is a dynasty in which the monarch is succeeded by their children or other heirs from generation to generation or from one reigning family to the next.
• To comprehend a monarchical constitution, it is necessary first to grasp what a monarchy is: a government led by a King, Queen, or Emperor.

5. Presidential and Parliamentary:

• A presidential constitution vests all executive powers in a president who serves as the head of state and government.
• The President may use the executive management of government personally or through the vice president, ministers, and other officials in the country’s public service.
• The President’s powers include upholding the Constitution and enforcing all legislation passed by the legislature at the time.
• A parliamentary constitution is a type of Constitution in which the government’s executive responsibilities are vested in a Prime Minister, the head of government, and the majority party, but not the head of State.
• In countries with this form of Constitution, the only ceremonial head of state is a monarch, or a president, the figurehead, the symbol of the State, and the Father or Mother of the Nation, depending on the situation.

6. Democratic Constitution:

• The word “democracy” is made up of two Greek words: “Demos,” which means “people,” and “kratia,” which means “rule” or “government.”
• Democracy is a form of government in which the people participate directly or through representatives.
• A truly democratic government must be made up of the people’s representatives or the generality.
• It must also be a people-formed and installed government.

1.1.6.2 Legislation

• This law was made by parliament directly in exercising the legislative power conferred upon it by the Constitution.
• The product of parliament’s legislative process is an Act of Parliament, e.g., The Mining Act. Sec 3(1) (b) of the Judicature Act recognizes legislation or statutes law as a source of the law of Kenya by the words “All other written laws.”
• These words encompass:

1. Certain Acts of the UK Parliament are applicable in Kenya.
2. Certain Acts of the Indian Parliament applicable in Kenya
3. Acts of the legislative council
4. Acts of the Parliament of Kenya.

• Statute law legislation is a principal source of law applicable throughout Kenya.
• It must be consistent with the Constitution.
• Therefore, it is the most important source of law.

Types of Bills

• A bill is a draft law.
• It is a statute in the draft.
• Bills may be classified as:-

1. Government and Private members bills
2. Public and Private bills

i. Government Bill:

• This is a Bill mooted by the government, which it introduces to the National Assembly for debate and possible enactment of the law.
• The office of the Attorney General drafts all government bills.
• Therefore, most bills are government bills.

ii. Private Members Bill:

• This is a Bill mooted by a member of parliament in his capacity as such which he introduces to the National Assembly for debate and passage to law, e.g., The Hire Purchase Bill, 1968.

iii. Public Bill:

• A public bill is a proposed law that would apply to everyone in its domain.
• This is not like a private bill, which is a proposal for a law that only affects one person or group of people, or a business.

iv. Private Bill:

• This Bill seeks to introduce or amend laws applicable in some parts of Kenya or regulate a specific group of persons.
• The bill may be government or private members.

Law Making Procedure

• Kenya’s sovereign people delegate legislative authority to Parliament and the County Assemblies in accordance with the Constitution (Art. 1).
• The power to make, alter or repeal law is known as a legislative authority.
• The law-making or legislative process refers to the stages involved in bringing a legislative proposal to the attention of Parliament or the County Assembly and having it become legislation.
• The stages are as follows:-

Stage 1.  1^st Reading:

• The bill’s submission and first reading in the House is the first real step in the legislative process.
• When the notice time has expired, and the Member or Minister is ready to introduce his or her bill, he or she informs the Chair during Routine Proceedings when the item “Introduction of Government Bills” or “Introduction of Private Members’ Bills” is called.
• Then, without debate, modification, or question, leave to
• propose a bill is automatically granted, and the motion is deemed carried.
• When obtaining leave to introduce a bill, a Minister is not required to provide a reason, but they may do so.  
• On the other hand, a private Member usually gives a brief description of the bill he or she is bringing in the House.
• The goal of the first reading is to allow the bill to be introduced, printed, and given to all members.
• It is at this time that it is assigned a specific bill number.

Stage 2. 2^nd Reading:

• The Bill is read out to members for the 2nd time.
• This is the debating stage. All members are allowed to make contributions.
• When the House gets to the second reading of a bill, it is usually asked to support its premise.
• However, adopting the concept at this point in the legislative process has the consequence of limiting the breadth of adjustments that can be made during the committee research and report stage.
• Amendments or alterations may be proposed.
• After exhaustive debate, the Bill proceeds to the committee stage.

Stage 3. Committee/Committal Stage:

• The bill is committed either to a select committee of members or to the entire National Assembly as a committee for a critical analysis. At this stage, the bill is analyzed word for word.
• In the case of a select committee, it makes a report for submission in the National Assembly

Stage 4. Report/Reporting Stage:

• The chairman of the Select Committee tenders its report before the National Assembly.
• If the report is adopted, the bill proceeds to the third reading

Stage 5. 3^rd Reading:

• The bill is read out to members for the third time.
• Generally, no debate takes place.
• Members of the National Assembly vote on the Bill, and if supported by the required majority, it proceeds for presidential assent.
• The third reading of a bill in the House of Commons is the final stage before it may be passed.
• Members must decide if the bill should be adopted and eventually become law at this point.
• Even though the third reading is sometimes dismissed as a simple formality, it is important in the legislative process.
• It could be a significant discussion stage for Members in the case of a very contentious measure.

Stage 6. President’s Assent:

• All Bills passed by the National Assembly or the Senate must be presented to the president for his assent.
• Within 21 days of the presentation of the bill, the president must signify to the speaker of the National Assembly his assent or refusal.

President’s Refusal To Assent To The Bill.

1. Within fourteen days after receipt of a Bill, the President shall assent to the Bill; or refer the Bill back to Parliament for reconsideration by Parliament, noting any reservations that the President has concerning the Bill.
2. If the President refers a Bill back for reconsideration, Parliament may, following the appropriate procedures under this Part –amend the Bill in light of the President’s reservations or 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 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– by two-thirds of members of the National Assembly; and 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 clause (4)– the appropriate Speaker shall, within seven days, re-submit it to the President, and the President shall, within seven days, assent to the Bill.
6. If the President does not assent to a Bill or refer it back within the period prescribed in clause (1), or assent to it under (5)(b), the Bill shall be taken to have been assented to on the expiry of that per Statute law legislation is a principal source of law applicable throughout Kenya. It must be consistent with the Constitution. Therefore, it is the most important source of law.

1.1.6.3 Delegated legislation

• The vast bulk of legislation enacted by government agencies and other independent institutions under the authority of Acts of Parliament that delegate this power to them is delegated legislation.
• This type of legislation is known as subordinate legislation or Legislative Instruments.
• It is indirectly a law enacted by parliament.
• Delegated legislation consists of rules, orders, regulations, notices, proclamations, and other documents issued by subordinate but competent agencies, such as:-

1. Local Governments
2. Statutory boards, 
3. Professional bodies such as ICPAK
4. Ministers of the government

• These bodies enact laws using the delegated legislative authority granted by parliament via an Enabling or Parent Act.
• Delegated law can take many different forms.

For example:

1. Local governments enact bylaws that apply only to their jurisdiction.
2. Rules, orders, regulations, notices, and other documents are issued by government ministries, professional organizations, and others.

 Characteristics of delegated legislation

1. An Act of Parliament provides the express authority for all delegated legislation.
2. Delegated legislation must be published in the Kenya Gazette before taking effect unless otherwise specified.
3. Unless otherwise specified, delegated legislation must be presented to parliament for approval. Parliament has the authority to declare delegated legislation null and void by passing a resolution to that effect, rendering it ineffective.

What is the purpose of delegated legislation?

• Delegated legislation is referred to as a “necessary evil” or a “constitutional infraction.”
• This is due to the theory of separation of powers, which states that lawmaking is the legislature’s responsibility.
• Parliament delegates Law-making powers to other persons and bodies for various reasons:-

1. The Parliament is not constantly in session.
2. The Parliament is not made up of experts in every discipline.
3. Parliamentary time is insufficient.
4. Parliamentary legislation is delayed and inflexible in response to pressing requirements. Consequently, it also lacks the necessary flexibility.
5. Increased frequency of social laws

Advantages of delegated legislation

1. Compensation for previous parliamentary time: Because members of parliament are not always present in the National Assembly when laws are being enacted, the delegates to whom legislative power has been delegated make up for the time lost. As a result, no lawmaking time is lost.
2. Speed: Government ministers, professional bodies, and other agencies make laws more quickly, making them more responsive to pressing requirements.
3. Flexibility: The system for law-making by delegates, such as Government Ministers, is not bound by rigorous constitutional or other legal provisions. In the legislative process, the Minister has the necessary flexibility. He is free to seek advice from others.
4. The technicality of subject matter: Because parliament does not include experts in all subjects that require legislation, it is preferable, if not necessary, to transfer law-making authority to experts in those sectors, such as government ministries and local governments.

Disadvantages of delegated legislation

1. Less democratic: Delegated legislation is less democratic than statutory law since representatives do not necessarily make it of those who will be affected by the law. For example, technical workers in a government ministry may create rules.
2. Difficult to control: According to Professor William Wade in his book “Administrative Law,” one of the most significant issues posed by delegated legislation is that its vast expansion has rendered it impossible for parliament to monitor. Because of their fundamental and practical weaknesses, neither parliament nor courts of law can successfully control delegated legislation.
3. Inadequate publicity: When compared to statutory law, delegated legislation receives little, if any, attention. To a considerable extent, this legislation remains unknown.
4. Sub-delegation and abuse of power: Delegates to whom parliament has delegated the power to make laws frequently sub-delegate to others who make the laws. Sub delegation exacerbates the problem of control, and many cases result in power abuse.
5. Detailed and technical: It is said that delegated law drafted by experts is too technical and detailed for the average individual in some instances.

1.1.6.4 Common law and doctrines of equity

Common Law

• A body of unwritten laws based on legal precedents established by the courts is known as common law.
• Common law, also known as Anglo-American law, is the body of customary law that has been used by common-law courts in England since the Middle Ages.
• It is based on judicial decisions and is written down in reports of cases that have been decided.
• Common law plays a role in the decision-making process in exceptional instances where the outcome cannot be determined by existing statutes or written norms of law.
• Common law, also known as case law, draws from institutionalized opinions and interpretations from judicial authorities and public juries.
• Common laws sometimes inspire new legislation to be enacted.
• It relies on detailed records of similar situations and statutes because no official legal code can apply to a case at hand.

Characteristics of Common Law

1. A written constitution or codified laws are not always present;
2. Judicial rulings are final – the highest court’s judgments may usually only be overturned by the same court or by legislation;
3. Extensive contract freedom – little legal provisions are implied into contracts (however, provisions aimed at protecting private consumers may be implied);
4. In general, anything that is not expressly prohibited by law is allowed.

Advantages of Common Law

1. Specificity. Legislation is expanded, clarified, and implemented by common law. Acts of parliament are frequently broad and generic in nature, providing general instructions on the law but not on how it should be applied in specific instances. Judges and common law are responsible for examining individual circumstances in each case, interpreting relevant laws, and enforcing the law based on their conclusions. “Common law puts meat on legislative bones,” as one jurist put it.
2. Unforeseen circumstances. Similar to the argument regarding specificity made above, common law can adapt to events, situations, and facts that legislators could not foresee or predict. Parliament will never be able to legislate for every possible problem, activity, or circumstance that may happen in society. However, the application of common law to real-life situations can be examined and developed.
3. Consistency. For the most part, the concept of precedent is useful because it ensures that the legal system is stable and consistent. Parties to trials and hearings can be assured that conclusions are based on precedent rather than personal opinions or arbitrary judgment. In addition, senior judges at higher courts are more likely to set precedents as they have more authority and expertise.
4. Flexibility. Common law ensures consistency while also allowing for flexibility and change in the law-making process. Precedents can be questioned, overturned, and replaced by new ones. The courts have a lot of room for common law reform.
5. Efficiency and speed. Parliamentary law is slower, less flexible, and less responsive than common law. Common law reacts and adjusts more quickly to shifting societal norms, community expectations, and other factors. Judges and courts can do it while evaluating a single case; institutional law reform committees or parliaments can take years to decide the necessity for change. Because they are not restricted by the political and procedural limits of the legislative process, the courts can also achieve law reform more quickly.
6. Independence from the government. Unlike their legislative colleagues in parliaments, judges and courts are not dominated or controlled by party politics or ideology. As a result, the courts can enact law reforms that are divisive or unpopular – policies that could harm or even undermine the government’s election chances if they were introduced in parliament. Abortion, for example, is legal in three states under common law, but the legislatures in those states have refused to legislate on the issue.

Disadvantages of Common Law

1. Not proactive, but reactive. The courts, unlike parliament, can only modify common-law ex post facto (after the fact). They are unable to amend the law on their own. Courts can only deal with cases that have been presented to them. Laws and precedents may be clearly obsolete and need reform, but there is no way to change them until criminal charges are filed or civil action is filed.
2. A supplementary purpose. Parliament’s primary job is to create laws; however, the courts’ primary function is not to construct common law. Instead, the courts’ primary purpose is to dispense justice, with the development of common law as a subsequent result.
3. Undemocratic legislation. Parliamentarians are elected by the people and answer to them, but the legal system appoints judges. This fact has led to accusations that judges are unaccountable to the public. In addition, some people argue that judges make rulings against community standards and ideals and that common law is inherently undemocratic. 
4. Lack of review. Courts lack the staff, time, money, and opportunity to analyze common law developments thoroughly. As a result, before being prepared and submitted into parliament, the legislation will undergo several examination steps, including inquiries, investigations, parliamentary committees, law reform bodies, and consultation.
5. Easily overridden. Legislation can override common law at any time. The parliament is the supreme law-making authority, and common law is seen as inferior to parliament-enacted laws. This is a drawback of common law, but it’s also an answer to the claim that it’s undemocratic. The parliament can legislate to abolish or amend common law if it believes it is problematic or does not reflect the people’s views.

Doctrine of Equity

• The doctrine of Equity is a particular body of law developed in the English Court of Chancery.
• It’s not the same as ‘natural justice’ or ‘universal fairness, and it can be found in both domestic and international law, in both civil and common law systems.
• Equity is based on the idea that a right or liability should be distributed as evenly as feasible among all parties involved.
• Equity maxims are legal series that serve as a set of general concepts or guidelines to control how equity works.
• They tend to depict the attributes of equity as a more flexible, responsive approach to the demands of the individual, inclined to take into account the parties’ conduct and worthiness, in contrast to the common law.

The following are some of the 10  maxims of equity: 

1. Those who seek equity must also participate in equity:

• Those who desire equity must also provide equity.
• This maxim states that the person seeking equitable assistance must treat the person against whom the relief is sought fairly.
• The court may award equitable relief to the plaintiff on such terms and conditions as the court thinks suitable.
• Therefore this principle applies to the future conduct of the seeker of equity.
• As a result, the plaintiff is required to comply with such terms and conditions.

2. Equity Considers Done That Which Ought To Be Done:

• Another maxim is that equity considers what should be done as done.
• This means that in situations where a party is compelled to perform a duty, such as in contract law, equity will apply to place the parties in the relative positions they would have been in if the obligation had been fulfilled.
• As a result, this maxim applies to the party who was entitled to contract performance.

3. Equity Follows The Law:

• Equity does not substitute statute law or common law.
• Instead, equity is used when a statute or common law remedy is unavailable.
• Equity, on the other hand, must be consistent with statute or common law.

4. Equity Equals Fairly:

• This equity maxim is based on the concepts of impartiality and equality.
• So said, it means that both parties will be treated fairly.
• In general, the maxim will be applied whenever a property is distributed between rival claimants, and there is no other basis for division.
• For example, husband and wife who operate a joint bank account; each spouse may deposit or take out money.
• Upon divorce, the maxim applies.
• They share 50-50.

5. Equity looks to the substance or intent rather than the form:

• This maxim distinguishes between concerns of substance and matters of appearance.
• If there is a contradiction, equity will give priority to a substance (intention) above form.
• This maxim is frequently applied to trusts.
• Even though the word trust does not occur, the court has inferred a trust in some circumstances. 

6. Equity regards what ought to be done:

• This maxim is most commonly applied in the context of contracts.
• Equity treats a contract to do something as if it had already been done, but only in favor of those legally entitled to enforce the contract, not in favor of volunteers.
• As a result, agreements for value are frequently viewed as if they were performed when they should have been performed.
• Thus, for example, a person who takes possession of land under an expressly enforceable lease agreement is treated as if the lease had been granted him in any court with jurisdiction to enforce the agreement.

7. Equity imputes an intent to fulfill an obligation:

• If a person is required to execute a specific act and perform another conduct capable of being viewed as fulfilling that obligation, the other act will be regarded as fulfilling the obligation prima facie7.

8. Equity acts in personam:

• This is an equity maxim that describes the procedure.
• All equitable jurisdictions are built on this foundation.
• Courts of law implemented their decisions in Rem (against the person engaged in the dispute’s property), such as by writs.
• At the same time, equitable decrees were initially enforced by Chancery acting against the defendant’s person (i.e., by imprisonment) rather than in Rem.
• Later, equity devised a new means of sequestering the defendant’s property until he complied with the decision.

9. 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 the Plaintiff cannot obey.

10. Equity will not suffer a wrong without a remedy:

• “Ibis jus ibi remedium” says that if anything is wrong, there is a way to fix it.
• He who finds refuge in equity’s arms will not be brokenhearted.
• If a wrong can be redressed by equity, it should not be permitted to go uncorrected.
• However, not all moral wrongs can be righted through justice.
• The maxim must be interpreted to relate to rights capable of judicial enforcement but was not enforced under common law due to a technical flaw:-

• 1. In the absence of an Act of parliament.
  2. If it is consistent with written law including the Constitution.
  3. If it was applicable in England on 12/08/1897.
  4. If the circumstances of Kenya and its inhabitants permit.
  5. Subject to such qualifications as those circumstances may render necessary.

1.1.6.5 African customary law

• These are laws consisting of traditions considered legal requirements or obligatory standards of conduct, practices, and beliefs that are so fundamental and integral a part of a. social and economic system that they are treated as laws.
• Customary law is a collection of customs recognized and shared by a community, people, tribe, ethnic group, or religious group collectively. This is in contrast to written legislation enacted by a constituted political power, the application of which is in the hands of that authority.
• Customary rules are fundamental to indigenous peoples’ and communities’ identities, outlining members’ rights, obligations, and responsibilities about significant aspects of their lives, cultures, and worldviews.
• Customary law can include various topics, including natural resource usage and access, land rights and obligations, inheritance and property, spiritual life, cultural legacy and knowledge systems, and many others.
• Maintaining customary laws is important for indigenous peoples and local communities’ intellectual, cultural, and spiritual life and heritage.
• However, they have also called for various forms of respect for and recognition of customary laws outside their own communities, such as land and natural resource claims. This can lead to a slew of constitutional concerns at the national level.

Uses of customary laws

1. It’s a factual factor in determining a community’s collective rights to traditional knowledge;
2. Its one of the elements of the definition of traditional knowledge, or can otherwise create the relationship between knowledge and a community, which is important to the concept of ‘traditional knowledge’;
3. Its a  method of deciding or guiding the steps to be followed in obtaining a community’s “free prior informed consent” to access and/or use traditional knowledge;
4. Its a tool for determining whether or if a cultural or spiritual offense or harm has occurred as a result of the improper use of traditional knowledge;
5. It’s a  factor or guide for how a community’s gains from the use of traditional knowledge should be distributed equitably;
6. Its a method for identifying suitable remedies, punishments, or reparations if traditional knowledge rights have been violated;
7. Its a means of resolving disputes over traditional knowledge ownership or other forms of custodianship; and
8. It is a road map for the generational transmission of traditional knowledge rights.

Conditions for application of customary law as a source of law in Kenya

1. Reasonability; A good local custom must be reasonable. That is, it must adhere to the idea of justice. Whether or not a custom is reasonable is a factual question for the courts to decide.
2. Conformity with statutory law: A local custom must be by legislation enacted by parliament. This is because parliament is the primary legislative body and has the constitutional authority to rule out the application of any customary rule.
3. Observation as a matter of right: A good local custom is one that society has publicly and as a matter of right observed, i.e., not by force, stealth, or at will.
4. Immemorial antiquity: A custom must have existed from the beginning of time. The term “time immemorial” refers to the fact that no living individual can recall when the custom did not exist.

Matters adjudicated by African Customary laws.

1. Land held under customary tenure
2. Marriage, divorce, maintenance, or dowry
3. Seduction or pregnancy of an unmarried woman or girl
4. Enticement of or adultery with a married woman.
5. Matters affecting the personal status and, in particular, the status of women, widows, and children, including custody, adoption, legitimacy, etc.
6. Intestate succession and the administration of intestate estates that are not governed by written law.

Characteristics of African Customary Law

1. Unwritten nature:

• One of the most notable features of customary law is that it is entirely unwritten.
• This means that there is no single text that contains all of the customary laws.
• For example, a village’s customary law may stipulate that only male offspring can inherit their fathers’ wealth.
• This law does not have to be written down, but society’s members will acknowledge it.
• Evidently, customary law is derived from the recollections of elders and those whose traditional responsibilities allow them to have specific knowledge of their people’s customs and traditions.
• They develop legislation based on what individuals in that community do regularly.

2. Flexibility:

• Customary’s unwritten feature has also made it exceedingly adaptable and flexible.
• When we say that customary law is flexible, we mean that it is dynamic rather than static.
• The fact that customary law is not codified appears to be the explanation for its fluidity.
• As a result of the continual interpretation of the laws, the interpreters of the law make adjustments.

3. Acceptability:

• Another distinguishing feature of customary law is that it is universally acknowledged by those who follow it.
• In fact, a custom is not a customary law until it is universally recognized by those who practice it.
• In some circumstances, the court has determined that a not recognized custom cannot be called customary law.

4. No uniform body:

• The final but not least characteristic of customary law to be aware of is that it lacks a unified entity. Yes!
• Because the customs of one community differ from those of another, even if the societies are geographically adjacent, customary law lacks a unified body.
• The people of Nigeria are diverse, and their customs are diverse as well.
• It is also said that the diversity of Nigerian customs is the greatest impediment to the uniformity of the country’s customary law system.

1.1.6.6 Religious laws: Islamic law and Hindu law

• Sharia law, often known as Islamic law, is a religious code part of Islamic traditions.
• It is based on Islamic religious precepts, primarily the Quran and hadith.
• In Arabic, the term sharah refers to God’s unchangeable divine rule, as opposed to fiqh, which refers to human intellectual interpretations.  
• It is based on the Muslim Holy Book, the Quran, and the teaching of Prophet Mohammed contained in his sayings known as Hadith.
• It is a subsidiary source of the law of Kenya.
• It is based on the Koran, Islam’s fundamental text, and fatwas, or Islamic experts’ judgment.
• Sharia law is a code of conduct that all Muslims should follow, including prayers, fasting, and charitable contributions to the destitute.
• Its goal is to help Muslims comprehend how to live their lives by God’s will in every way. Muslim law is applied in adjudicating the following matters:-

1. Marriage
2. Dowry
3. Divorce
4. Inheritance
5. Persona status

Characteristics of Islamic Law

1. Synergetic: Shariah’s teachings are complementary. They foster human synergy, in which people work together to promote good and eliminate evil. At all levels, Shariah fosters synergy between people and their leaders. Allah declares
2. Practical: Shariah was created to deal with people as they are. It recognizes their wants and requirements. Allah is aware of the needs of the humanity He created, including the need to eat, drink, and marry. They have material requirements and needs in the same manner that they have spiritual and emotional needs. 
3. Preserved: Shariah has the distinction of being the last Shariah to humanity. It will continue to exist and be passed down from generation to generation. Allah maintained and protected its sources as a result of this. The Quran was delivered to a community renowned for its memorization skills. People remembered the entire Book.
4. From Allah: The fact that Islamic Shariah is from Allah is the first and most significant feature. Despite its obvious importance, this quality is frequently overlooked. Humans did not create shariah, nor was it the result of their collective experience. Allah, the Almighty, the Creator, the Most Merciful, the Ultimately, is the source of its guidance, judgments, and teachings.
5. Comprehensive: Shariah is a complete code of conduct that considers all elements of human life. It guides us from the moment we are born until the moment we die – and even before we are born and after we die. Shariah guides us in all areas of our lives: at home, in the mosque, and at work. It governs our interactions with Allah, our Creator, as well as our relationships with ourselves,  families, communities, and society.
6. Moderate and balanced: Shariah is also mild and balanced: it strikes a balance between the body and the spirit, the intellect and the emotions, and this life and the afterlife. It strikes a balance between theory and reality, thinking and action, the unseen and the visible. Shariah encourages freedom while still requiring accountability.
7. Release from burdens: One of Shariah’s most fundamental characteristics is its creation to make things easier and alleviate burdens. The Quran describes the Prophet (peace and blessings be upon him) as someone who he directs them to do what is right and forbids them to do what is wrong; he permits them to do what is good (and pure) and forbids them to do what is wrong (and impure); he frees them from their heavy loads and yokes.

Primary Sources Of Islamic Law

The following are the four primary sources of Sharia Law:

1. Quran: The Holy Book – communicates Allah’s universal and eternal messages conveyed by the Prophet.
2. The Hadith: The Hadith, or tale of the Prophet’s Sunnah, is the Muslim community’s code of faith.
3. Ijma: The Ijma comprises the legal opinions of Islam’s educated scholars.
4. Qiyas: Qiyas is the process of comparing challenging doctrine questions with situations settled by the authority of the Holy Book and Sunnah in similar cases.

1.1.6.7 Judicial precedent

• A precedent is a court decision or judgment generally recorded in a law report and is used as a basis for reaching the same conclusion in a subsequent case.
• The Supreme Court would typically follow its own rulings unless it could reverse them and make them no longer have precedential value.
• Judges have made this law.
• Judges make law when they formulate principles or propositions when none previously existed or in dubious situations.
• These principles or propositions are then applied as law in the following cases.
• As a result, case law is made up of legal concepts or propositions formed by judges when determining cases.
• The principle by which judges are bound to precedents is known as stare decisis (a Latin phrase with the literal meaning of “to stand in the things that have been decided” Let the decision remain)

Generally speaking, a legal precedent is said to be:-

Applied:

• If the concepts behind the earlier judgment are used to examine the issues in the future case, they are applied (if precedent is binding) / adopted (if precedent is persuasive).

Distinguished:

• If the principles underpinning the previous decision are found to be specific to, or based on, certain factual scenarios and are not applied to the subsequent case due to the absence of material difference in the latter’s facts; or if the principles underpinning the previous decision are found to be specific to, or based on, certain factual scenarios, and are not applied to the subsequent case due to the absence of material difference in the latter’s facts; or

Overruled:

• If the same or higher courts, on appeal or in later instances, determine the grounds supporting the earlier decision to be erroneous in law or superseded by new legislation or developments, the previous decision is overruled.

Classification Of Precedents

i) Original and Declaratory Precedents:

• There are two categories of judicial decisions that create new legislation and apply well-established legal principles to specific situations.
• Both of these decisions are considered precedent.
• It’s because the legal concepts contained within serve as authoritative guidelines for courts in resolving future disputes.
• Original precedents are decisions that create new law, whereas declaratory precedents apply well-established legal principles to the facts of the case.
• A declared precedent, unlike an original idea, is not a source of the new law.

ii) Authoritative and Persuasive Precedent:

• The division of precedents into authoritative and persuasive categories is commonly used.
• An authoritative precedent is one that the judge must follow regardless of whether he agrees with it.
• To put it another way, the judge is powerless.
• Authoritative precedent  is divided into 2:-

1. Absolute: A totally authoritative precedent is absolutely binding and must be obeyed without question, no matter how irrational or incorrect it appears to be. It has a legal claim that is uncontested by the court.
2. Conditional: A conditionally authoritative precedent is ordinarily binding on the judge but that he can ignore in certain circumstances. The court is under no duty to follow a convincing precedent. He has an option here about whether or not to follow a precedent. He may follow a decision if he is convinced of the crime or its merits; otherwise, he may refuse.

• Persuasive precedents, though not binding frequently have a significant impact on judicial decisions.
• The difference between a persuasive precedent and a conditionally authoritative precedent is that the former requires evidence to be supported while the latter requires rejection.
• Authoritative precedents are legal precedents, whereas persuasive precedents are just historical precedents.

1.1.7 General rules of international law

• The term “international law” refers to the rules that govern state-to-state relations.
• Despite the lack of a superior authority to enforce such rules, states regard international law as binding on them, and it is this fact that gives these rules legal status.
• So, if a state wants to avoid a rule, it won’t argue that international law doesn’t exist; instead, it’ll argue that states haven’t agreed that the rule should be binding on them, or that the rule doesn’t apply to the circumstances.
• International law, unlike national or domestic law, is not codified in any legislation passed by a legislature.
• Even multilateral treaties apply only to those states that have agreed to be bound by them by signing, ratifying, or acceding to them.
• As a result, international law’s precise rules are often more difficult to find than national laws and can be found in a variety of places.

The general rules of international laws include:-

1. Supremacy of the law.
2. Equality before the law.
3. Accountability to the law.
4. Fairness in the application of the law.
5. Participation in decision-making.
6. Legal certainty.
7. Procedural and legal transparency.

1.1.8 Administrative law
1.1.8.1 Meaning of administrative law

• The law dealing with public administration is known as administrative law.
• Administrative law is the law relating to the executive branch of government.
• It is the law that governs the conduct, administration, and execution of public affairs and responsibilities.
• Administrative law is concerned with how the government goes about performing its duties.
• Administration refers to the act or process of administering, which involves dispensing, managing, monitoring, and carrying out government functions.
• Administrative law, therefore, is the law that governs the exercise of governmental power.
• It is also known as the body of broad principles that regulate how public authorities perform their powers and obligations.
• The primary goal of administrative law is to restrict government authorities within legal limitations to safeguard citizens from misuse.
• Administrative law also deals with the management and administration of public service delivery.
• It is concerned with the manner in which the government performs its duties.
• The government’s responsibilities include providing public services such as health, security, trade facilitation, dispute resolution, and revenue collection.

The law deals with a variety of things e.g.

1. The formation of public authorities, public bodies and organs.
2. The nature of the duties assigned to various government bodies and organizations.
3. The legal relationship between public bodies, public bodies and the general public and between public bodies and citizens.

Areas / Scope of Administrative Law

1. Ministerial functions: Are those that Cabinet secretaries carry out or execute in the implementation of government policies and programs. Ministers can appoint public employees and provide ministerial permissions and consents.
2. Administrative functions: Are those performed by public officials and public entities in the administration of various governmental agencies in the provision of services, such as educational services, and the administration of various social services, such as social security services.
3. Legislative functions: These include the creation and implementation of subsidiary laws. Legislative functions are the responsibility of the different Ministers. The respective ministers are also in charge of making by-laws.
4. Judicial functions: These are largely responsible for resolving claims or disagreements between persons and other entities. The Industrial Court, which serves as a court of law, is a good example of an administrative entity that conducts judicial tasks.
5. Quasi-judicial functions: These involve the exercise of judicial powers but without the customary trappings of a court of law, such as the rigorous requirement of rules of evidence or the compliance of rules of evidence, the strict requirement of witness examination, and other legal technicalities. The Liquor Licensing Court, Land Control Boards, and Motor Vehicle Licensing Authorities are all suitable examples.

1.1.8.2 Functions of administrative law

• Administrative law’s primary objective is to keep government powers within legal bounds in order to protect the citizen from abuse.
• Administrative law also encompasses the administration and administration of public services.
• Power must be exercised within the parameters established by law. 
• A dramatic government must be endowed with sufficient authority to carry out its functions effectively, and it must be accountable to the people who elected it.
• Administrative laws establish the organizational structure, authority, and responsibilities of administrative authorities.

The main functions of Administrative Law are:-

1. To establish a framework for the relationship between organized powers and the common man
2. To conduct research on the statutory bodies that carry out the government’s public policy.
3. To establish the working relationship between administrative agencies
4. To ensure administration’s transparency and accountability;
5. To govern and control the ministry’s discretion
6. To establish an effective grievance redress system for citizens.
7. It guarantees that services are delivered correctly.
8. It aims to safeguard citizens from abuses of power.
9. To keep government powers, i.e., the powers of various public entities, within legal limitations in order to safeguard citizens from misuse.

1.1.8.3 Control of administrative bodies: Executive, Legislative and Judicial

There are three kinds of Control given under Delegated Legislation:-

1. Parliamentary or Legislative Control
2. Judicial Control
3. Procedural and Executive Control

1. Parliamentary or Legislative Control

• Parliament has the authority to grant anyone the powers it possesses; similarly, when parliament transfers legislative authority to another entity, e.g. the executive, they must ensure that such authority is exercised properly by the government and that no abuse of authority occurs.
• A key function of the legislature in parliamentary democracy is legislation, and it is not only the right but the obligation of that legislature to monitor and evaluate its agents and the way they are performing their duties.
• It is a proven fact that, as a result of delegated authority and general standards of control, judicial control has been diminished and its scope has been reduced.

2. Judicial Control

• Delegated legislation is subject to judicial review by the Supreme Court and the High Courts.
• In India, the judiciary exerts effective control over delegated legislation.
• Courts can review the validity of delegated legislation on a variety of grounds. These grounds are significantly larger than those available in England.
• All laws enacted in this country must adhere to the Constitution’s provisions.
• When a law passed by the Executive Branch is found to be in conflict with the Constitution or to be ultra vires the parent Act from which the law-making authority was derived, the Court declares it null and void.
• In India, the Supreme Court and the High Courts have been vested with the authority to examine the validity of delegated legislation.
• In terms of the control mechanism, judicial control has emerged as the most remarkable controlling measure to have been implemented.
• In order to exercise judicial control over delegated legislation, two tests must be applied.
• They include:-

1. The first is called substantive ultra vires: Substantive ultra vires occur when subordinate legislation goes beyond the scope of authority conferred on the delegate to enact. A fundamental principle of law is that a public authority cannot act outside of its authority and that if it does, “such act becomes ultra vires and, accordingly, void.”
2. The second is called procedural ultra vires: Procedural ultra vires occur when a subordinate law is enacted without adhering to the procedural requirements imposed by the Parent Act or the general law. The Courts may or may not quash delegated legislation in cases of procedural ultra vires, depending on the circumstances and whether the procedure is deemed mandatory or directory. The doctrine of ultra vires is used by judges to exercise judicial control over delegated legislation in a variety of situations.

3. Procedural and Executive Control

• There is no specific procedure for it until the legislature makes compliance with certain rules or procedures mandatory for the executive.
• Following a prescribed format may take a long time, which will undoubtedly defeat the act’s stated purpose.
• Thus, procedural control means that the Parent Act establishes certain guidelines that must be followed regardless of whether they are mandatory or directory.
• Judicial review aided in the advancement of the rule of law.
• The court must ensure that the delegation of authority is consistent with the provisions of the constitution.
• Judicial review is more effective than an executive review because the court does not recommend but clearly invalidates the rule that is ultra vires in nature.
• The executive arm of government or a higher administrative authority usually has control over a delegate of power or an administrative lawmaker and his delegated legislation.
• It can be used in a variety of ways, such as:-

1. The power to appoint or fire the administrative lawmaker is exercised by the appointor or donor; done or appointee. This is the authority to hire and fire unfit appointees. As the need arises, an appointor may remove personnel, deputies, and other appointees. This is the authority to hire and fire employees.
2. Submitting proposed rules or a planned course of action to the appropriate supervisory body or authority for review, consideration, approval, modification, suspension, or outright rejection. Local government councils, for example, submit Bye-Laws for approval to the Ministry of Local Government or the Governor, depending on the situation, before they become laws.
3. Revocation of the delegated power. The issue of delegation of powers was thoroughly examined in the case of Ondo state university v and the Supreme Court held that the power to delegate functions also includes the power to revoke such delegation.

1.1.9 Natural justice

• Natural Justice refers to the rule against bias and the right to a fair hearing.
• While the word “natural justice” is still used to describe a broad concept, it has mainly been replaced and expanded by the “obligation to act fairly and equitably.
• “The rule against bias is based on the necessity to maintain public trust in the legal system.
• Natural Justice can also be defined as the administration, preservation, provision, or observance of what is just, right, proper, correct, morally upright, merited, or deserved by virtue of a person’s inherent nature or based on an inherent sense of right and evil.

Principles /Rules of Natural Justice

• The principles of natural justice are standards that govern the practice and conduct of administrative organizations.
• They were created by English courts and then brought into Kenya as common law concepts.
• The principles of natural justice are implicit, that is, they are not expressly stated in a statute; they are expected to apply in all cases until a statute expressly indicates that they do not.
• They apply even if there are no law provisions permitting their application or enforcement.
• Unless law provisions overtly or implicitly prohibit the use of natural justice principles, these principles are always inferred.
• It is assumed that parliament has authorized the use and adherence of natural justice principles in all cases.
• These principles include:-

1. Nemo Judex In Causa Sua (which means that procedures must be free from bias):

• “No one should be a judge in his own case,” says the author, because it leads to biases in the rules.
• Bias is defined as an act that leads to unjust behavior in relation to a party or a specific issue, whether it is done consciously or unconsciously.
• As a result, this rule is necessary in order for the judge to be impartial and render a decision based on the evidence presented in the case.

2. Audi Alteram Partem (which means that no person should be condemned unheard i.e. a person should not be denied an opportunity to be heard.) :

• This basically means that no one can be sentenced or punished by a court without first getting a chance to be heard.
• In many countries, the majority of matters are left unresolved without being given a fair chance to be heard.
• The precise meaning of this rule is that both sides should be given an equal opportunity to submit their respective arguments and a fair trial should be held.
• This is a fundamental law of natural justice, and it states that no one should be punished without a valid and acceptable reason.
• A person should be given advance warning so that he can prepare for the charges leveled against him.
• It’s also known as a fair hearing rule. The components of a fair hearing are not rigid or fixed. It differs from one situation to the next and from one authority to the next.

The above two principles have been broken down into a number of principles or rules which are as follows:-

i. Rule against bias:

• In summary, there can be bias when:
• There is some direct interest in the matter to be adjudicated; e.g. pecuniary interest; or
• Where short of a direct interest there is a reasonable appearance or likelihood of bias;or
• Where there is actual bias.

ii. The right to be heard:

• Simply put, a concerned person must be given the opportunity to be heard.
• If an administrative body fails to provide a concerned individual with the opportunity to be heard, whatever decision it takes will be overturned on appeal.

iii. Prior notice:

• A person must be provided proper advance notice of any charge or allegation under this rule.
• It simply implies that before making a decision, an administrative body must provide proper notice to the person against whose complaints have been made.
• The relevant person must be notified in advance.
• The notification must include enough information for the person to understand the nature of any charge, allegation, or action that will be brought against him.

iv. Opportunity to be heard:

• There is no settled rule as to whether the hearing should be oral or written but in all cases one must be afforded a chance to present his case whether oral or written.

v. Disclosure of information:

• A party who is concerned must be given all of the information that the decision-maker will use to make his decision.
• This rule mandates that all allegations and reports pertaining to a person’s case be made public.
• Failure to do so can mean doom for a judgment.

vi. Adjournment:

• Natural Justice requires that a party be granted an adjournment of a case hearing if there are realities (no matter how guilty a person is, if demands arise, they must be granted an adjournment by the administrative body, and if they are denied an adjournment and a decision is made, the court will quash the decision).

vii. Cross-examination:

• The right to cross-examine can only be exercised if there is an oral hearing, hence the rule only applies to cases in which there is an oral hearing.
• When a party demands cross-examination at an oral hearing, the impacted party must be given the opportunity to do so.
• If an aggrieved party asks for cross-examination but is denied, the decision can be overturned on the basis of a violation of natural justice standards.

viii. Giving reasons:

• As a component of natural justice, courts are increasingly demanding on providing explanations for their decisions.
• (If an administrative body rejects you a license, for example, they must provide you reasons for their decision, failing which you can ask the High Court for a review.)
• It means that a decision can be questioned if no explanations are presented.

ix. Legal representation:

• This does not apply in every situation, but in appropriate cases and circumstances, the right to be represented by a lawyer or other person may be considered part of natural justice.
• The Liquor Licensing Act, for example, permits a person applying for a license to be represented by an authorized agent, who then becomes the individual’s legal representative before the court.

Purpose of the principle of Natural Justice

1. To ensure that everyone has an equal chance to be heard.
2. Fairness as a concept
3. To close the legal gaps and loopholes.
4. To ensure the protection of fundamental rights.
5. The Constitution’s fundamental elements.
6. There has been no miscarriage of justice.

Exceptions to the natural justice rule

1. Exemption based on legal provisions.
2. The constitution’s provisions forbid it.
3. In the event of a legislative act, there is an exception.
4. In the public interest, rejection.
5. Exemption in the event of a requirement for immediate action, an emergency, or a necessity.
6. Exemption based on the impossibility of the situation.
7. In the event of confidentiality, you will be excluded.
8. In circumstances of academic adjudication, the exclusion is a possibility.
9. The exemption is when a person’s right is not violated.
10. In the case of interim preventative action, the exemption is required.
11. In the event of fraud, you will be excluded.

1.1.10 Constitutional concepts

The Constitution rests on certain basic principles/concepts which are:-

1. Sovereignty:

• Popular sovereignty, or rule by the people, is the cornerstone of the Constitution.
• The framers of the Constitution lived at a time when monarchs claimed that their power came from God.
• A revolutionary new thought is expressed in the Preface, which refers to “We the people.” This idea is that a government derives its authority from the people.
• This principle, known as popular sovereignty states that the people  have the right to alter or abolish their government. 

2. Limited government:

• Limited government, by which the Constitution limits government actions by specifying its powers and listing powers it does not have, retains for the people the right to govern themselves.
• The colonists had lived under the harsh rule of a king.
• To avoid such tyranny in their new government, the framers made limited government a principle of the Constitution.
• In a limited government, the government has only the powers that the Constitution gives it.
• Just as important, everyone from you to the President must obey the law. 

3. Separation of powers:

• To further limit government power, the framers provided for separation of powers.
• The Constitution provides for separation of powers  and divides the government into three branches the legislative, executive, and judicial branches.
• Congress, or the legislative branch, makes the laws.
• The executive branch, headed by the President, carries out the laws.
• The judicial branch, composed of the courts, explains and interprets the laws. 

4. Federalism:

• Federalism, in which power is divided between national and state governments, is the government’s basic structure.
• The Constitution also establishes the principle of federalism, or division of power between the federal government and the states.
• Among the powers the Constitution gives the federal government are the power to coin money, declare war, and regulate trade between the states.
• States regulate trade within their own  bor­ders, make rules for state elections, and establish schools.
• Some powers are shared between the federal government and the states.

5. Checks and balances:

• Checks and balances, the process by which each branch of government exercises some powers over the others, guarantees that no branch of government will become too powerful.
• A system of checks and balances safe­guards against abuse of power.
• Each branch of government has the power to check, or limit, the actions of the other two.

6. Republicanism:

• The Constitution provides for a republican form of government.
• Instead of taking part directly in government, citizens elect representatives to carry out their will.
• Once in office, repre­sentatives vote according to their own judgment.
• However, they must remain open to the opinions of the people they represent.
• For that reason, members of Congress maintain offices in their home dis­tricts, and often Web sites as well.

7. Individual rights:

• The Constitution protects individual rights, which are basic freedoms the government agrees to protect.
• Examples of these rights are freedom of speech, freedom of religion, and the right to trial by jury.

8.Judicial review:

• Judicial review, or the power of the courts to overturn laws and actions of national, state, and local governments, ensures that laws made by Congress and the states do not violate individual rights

9.Rule of Law:

• The rule of law is the political philosophy that all citizens and institutions within a country, state, or community are accountable to the same laws
• It is a principle under which all persons, institutions, and entities are accountable to laws that are publicly promulgated, equally enforced, independently adjudicated and consistent with international human rights principles.
• In simple words rule of law is a norm that supports the equality of all citizens before the law

1.1.11 Doctrine of separation of powers and independence of the judiciary

• Separation of powers refers to the division of government responsibilities into distinct branches with the goal of preventing one department from performing the primary functions of another.
• The goal is to prevent power concentration and establish checks and balances.
• According to Montesquieu the only way to create a system of checks and balances was to ensure that governmental powers were devolved.
• He developed the so-called classical doctrine of separation of powers.
• He suggested that:-

1. There should be different organs of government i.e. executive, legislature, and judiciary.
2.  These organs must exercise different functions. The legislature makes the law, the judiciary interprets it and the executive administers.
3. No person should be a member of more than one organ.

• It is a model in which the government is divided into separate branches, each with its own set of powers.
• This system ensures that no one branch of government is more powerful than the others by having many branches of authority.
• The government is usually divided into three branches: –

1. Legislative Branch

• The legislative branch is in charge of enacting state legislation and appropriating the funds needed to run the government.
• The National Assembly and the Senate make up Kenya’s legislature (or parliament). The Republic of Kenya gets its legislative authority from the people, which is vested in and exercised by Parliament at the national level.
• Parliament expresses the nation’s variety, represents the people’s will, and exercises their sovereignty.
• As established in the Constitution, Parliament may consider and adopt revisions to the Constitution, as well as change county boundaries.
• The Constitution should be protected, and the Republic’s democratic administration should be promoted. In Kenya, no one or body other than Parliament has the authority to establish provisions that have legal force unless the Constitution or legislation grants it.

2. Executive Branch

• The executive branch is in charge of carrying out and managing the public policy that the legislative branch has passed and funded.
• The President, the Deputy President, and the members of the Cabinet make up the Cabinet.
• The President is the Head of State and Government, and with the help of the Deputy President and Cabinet Secretaries, he exercises executive authority over the Republic.
• The President is the ‘ Commander-in-Chief of Kenya Defense Forces and a symbol of national unity.
• The Deputy President serves as the President’s primary assistant and deputizes for the President in carrying out the President’s duties.

3. Judicial Branch

• The judicial branch is in charge of interpreting the constitution and statutes, as well as applying such interpretations to disputes that come before it.
• This is the body in charge of resolving disputes and interpreting laws. It is separate from both the Executive and the Legislative branches of government.
• The High Court is established as a higher court of record with unlimited original jurisdiction in civil and criminal proceedings, and the Court of Appeal is established as a superior court of record with jurisdiction and powers in respect to appeals from the High Court or as may be bestowed by law, the constitution also created the supreme court.
• The judiciary is headed by the Chief Justice, it has the supreme court judges as well as judges for the Court of Appeal and the High Court. The constitution also established other courts subject to the High Court and the Judicial Service Commission which have the authority to select and remove judicial officers as well as exercise disciplinary discipline.

Advantages of Separation of Powers

1. Protection of Liberty and Rights: The separation of powers idea allows for the protection of an individual’s liberties and rights, as well as protection from various forms of despotism and oppression.
2. Improved Government Efficiency: As powers are dispersed throughout government agencies, these departments develop a deeper understanding of the issues they are responsible for and become more efficient. The functions involved in governance are often too large for one branch of government to handle. As a result, separation of powers serves to limit the amount of work that each branch of government has to do.
3.  Promotes Governance Order: Each of the three branches of government is given its own set of responsibilities. A strict application of the idea would ensure that each person only does what they’re supposed to do. This ensures that the state’s administration is in order.
4. Prevents Power Abuse: Power separation combined with checks and balances is a powerful deterrent to power abuse and arrogance. Because power is spread across various departments, these departments have only limited authority, preventing the establishment of a dictatorship. The premise is sound in the sense that it can prevent government officials from acting autocratically. The notion ensures that too much power does not rest in the hands of a single government branch. This eliminates the possibility of power misuse.
5. Ensures the independence of the judiciary: The principle of judicial independence is that the judiciary should be separate from the other arms of government. Almost every constitution vests the judiciary with the authority to decide all constitutional disputes and to declare the actions of the other branches of government null and void. The principle of separation of powers aids in the strengthening of the judiciary’s independence in carrying out its duties.

Disadvantages of Separation of Powers

1. Administrative  Complications: The separation of powers causes administrative issues. Cooperation, coordination, and harmony among government organs become more difficult to achieve. The effective operation of modern governments necessitates a “coordination” of powers rather than a “division” of authorities.
2. Could Cause Confusion and Deadlock: Power separation can lead to jealously, distrust, and friction among government departments. It may cripple the administration by causing discord and confusion. As a result, even in times of crisis, the administration frequently fails to make rapid judgments. The principle of separation of powers, according to Finer, puts “governments in alternating states of coma and convulsion.” Another scholar believes that “power separation” leads to “power misunderstanding.”
3. Power Inequality: This theory is founded on the notion of power equality, yet this principle is incorrect. The legislature, which represents the people, is most powerful in the parliamentary system, whereas the executive is most powerful in the presidential system.
4. Separation of Powers Isn’t the Only Factor in Liberty: Separation of powers is a factor in liberty, but it isn’t the only one. People’s minds, outlooks, political awareness, customs and traditions, fundamental rights, rule of law, judicial independence, and economic equality all play a role in liberty.
5.  Could Disrupt the Power Balance: The government, which performs a variety of essential duties, has grown in power. It is also essential to offer welfare for the people, in addition to being a problem-solver and crisis manager. All of this has boosted the executive’s power and thrown the country’s three branches of government into disarray. Planning, security, and welfare necessitate the “fusion” of authorities rather than their separation.

1.1.12 Judicial control of the Executive

• The power of the court to keep executive acts within the bounds of the law is known as judicial control.
• It also implies that an aggrieved citizen has the legal right to sue the government for a wrongful act.
• The primary goal of judicial oversight of government is to protect citizens’ rights and liberties by ensuring that administrative actions are legal.

Grounds of Judicial Intervention

In most cases, judicial intervention in administrative matters is limited to the following:-

1. Lack of Jurisdiction:

• If a public official or administrative agency acts outside of or beyond its authority or jurisdiction, the courts can declare the act ultra vires.
• For example, in all organizations, the competent authority for making decisions and taking actions is identified according to administrative rules and procedures.
• If any authority or person other than the competent authority takes action, the court can be asked to intervene under the lack of jurisdiction provisions.

2. The error of Law:

• This type of case occurs when a government official misinterprets the law and imposes obligations on citizens that are not specified in the law.
• In legal terms, this is referred to as misfeasance.
• The courts have the authority to resolve such disputes.

3. The error of Fact:

• This category of cases arises from errors in case discovery and actions taken based on incorrect assumptions.
• Any citizen who has been harmed by a public official’s mistake can seek redress in the courts.

4. The error of Procedure:

• In a democracy, “due procedure” is the foundation of government action.
• The term “responsible government” refers to a government that follows the rules.
• The administrative procedure ensures accountability, transparency, and justice.
• In the performance of administrative activities, public officials must follow the procedures set forth by law.
• If the prescribed procedure is not followed, the courts may be called in to intervene, and the legality of administrative actions may be called into question.

5. Abuse of authority:

• If a public official uses his or her authority in a vindictive manner to harm a person or for personal gain, the court may intervene. Malfeasance is the legal term for it.
• The courts have the power to intervene in administrative acts of malfeasance.

Means of Judicial Control Over Administration

Some of the forms of judicial control over administration in India’s Rule of Law system are:-

1. Judicial Review:

• Judicial review refers to a court’s ability to examine the legality and constitutionality of officials’ administrative actions, as well as executive orders and legislative enactments.
• This is a crucial method of judicial supervision.
• This doctrine is prevalent in countries where the Constitution is considered supreme, such as the United States of America, India, and Australia.

2. Statutory Appeal:

• The aggrieved party in a particular type of administrative action has the right to appeal to the courts Judicial Administration or to a higher administrative tribunal under statutes enacted by Parliament and State Assemblies.
• In some cases, the legislative enactment itself may provide for judicial intervention.

3. Suits Against the Government:

• Filing suits against the government for contractual liability is subject to a number of restrictions, which vary by country.
• The Union and State Governments’ contractual liability is the same as that of an individual citizen under ordinary contract law, subject to any statutory conditions of limitation that the Parliament can impose under the constitution.
• Only in the case of non-sovereign functions is the state liable for the tortious acts of its officials.
• Under the Crown Proceedings Act of 1947 in the United Kingdom, the state is liable for torts (wrongs) committed by its servants, i.e., public officials, with some exceptions.

4. Legal Actions Against Public Officials (Criminal and Civil):

• The law governing public officials’ personal liability for acts performed in their official capacity varies from country to country.
• After two months’ notice, civil proceedings can be brought against a public official in India for anything done in his official capacity.
• Prior sanction of the Head of State, i.e., the President or the Governor, is required when criminal proceedings are to be instituted against an official for acts performed in his official capacity.
• Even in the case of personal acts, some officials, such as the President and Governor, are immune from legal action.
• Ministers, on the other hand, do not have this protection.
• The Monarch of the United Kingdom and the President of the United States of America are both immune from legal liability.