The Kenyan legal system dates back to the British common law system. Common law can be defined as “the body of law resulting from judicial decisions and not from statutes or constitutions. [13] The main sources of Kenyan law are listed in section 3 of the Judiciary Act (Chapter 8 of the Laws of Kenya) as follows. Since this is an application for leave to appeal a decision of the Court of Appeal, it would be good practice to file the application with the Court of Appeal, which would be in a better position to confirm whether it is a matter of general public interest. It is the Court of Appeal that consistently deals with the issue as part of the appeal process. That court had the advantage of assessing the facts and legal arguments submitted to it and submitted by the parties. In general, a retrial is ordered only if the original proceedings were illegal or flawed; it is not ordered if the conviction is quashed for lack of evidence or to allow the prosecution to fill the evidentiary gaps at the first trial; Even if a conviction is vitiated by an error on the part of the trial court for which the prosecution is not responsible, it does not necessarily follow that a new trial must be ordered; Each case should depend on its own facts and circumstances, and a new trial should be ordered only if the interests of the judiciary so require. Colonialism in Kenya undermined the territorial integrity of most ethnic groups in Kenya and consolidated ethnic differences in order to divide and dominate. Many ethnic communities in Kenya resisted colonial oppression during various periods of British rule – well-known resistance movements emerged from the Maasai, Nandi and Kikuyu communities.
Kenya gained independence from British colonial rule in 1963. [12] Thanks to the British administration for more than six decades, the Kenyan legal system is very similar to the English legal system. Definition: This entry contains a description of a country`s legal system. For a number of countries, a statement on judicial review of legislative acts is also included. The legal systems of almost all countries are generally based on elements of five main types: civil law (including French law, the Napoleonic Code, Roman law, Roman-Dutch law and Spanish law); common law (including U.S. law); Common law; mixed or pluralistic law; and religious law (including Islamic law). Another type of legal system – international law, which governs the conduct of independent nations in their relations with each other – is also discussed below. The following list describes these jurisdictions, the countries or regions of the world where these systems are applied, and a brief explanation of the origins and main features of each system.
Civil Law – The most widely used type of legal system in the world, applied in various forms in about 150 countries. Also called European continental law, the civil law system derives primarily from the Roman Corpus Juris Civilus (Civil Law Corpus), a set of laws and legal interpretations compiled under the Eastern (Byzantine) Roman Emperor Justinian I between 528 and 565 AD. The main characteristic of civil law systems is that laws are organized into systematically written codes. In civil law, the sources recognized as authoritative are mainly legislation – especially codifications in constitutions or laws enacted by governments – and, secondly, customary law. In some countries, civil law systems are based on more than one code. Common Law – A type of legal system, often synonymous with “English common law”, which is the system from England and Wales to the United Kingdom and is also in force in about 80 countries that were once part of or influenced by the former British Empire. English common law reflects biblical influences as well as remnants of legal systems imposed by early conquerors such as the Romans, Anglo-Saxons and Normans. Some jurists attribute the formation of the English common law system to King Henry II (r. 1154-1189). Until the time of his reign, customary laws in the various seigneurial and ecclesiastical (ecclesiastical) jurisdictions of England were administered locally. Henry II established the royal court and decreed that laws were “customary” throughout the English Empire.
The basis of English common law is the “legal precedent” – called stare decisis, which means “to stick to things decided”. In the English common law system, judges are largely bound in their decisions by rules and other doctrines developed and supplemented over time by judges of previous English courts. Common law – A type of legal system that serves as the foundation or has influenced current laws in about 40 countries – mostly in Africa, but also in the Pacific Islands, Europe, and the Middle East. The common law is also referred to as “primitive law,” “unwritten law,” “Aboriginal law,” and “popular law.” There is not a single history of customary law as found in Roman civil law, English common law, Islamic law or the Napoleonic Civil Code. The earliest legal systems of human society were common and generally developed in small agrarian and hunter-gatherer communities. As the term implies, customary law is based on the customs of a community. The common characteristics of customary systems are that they are rarely written, that they embody an organized set of rules that govern social relations, and that they are accepted by members of the community. Although these legal systems provide for sanctions for violations of the law, the solution is conciliatory rather than punitive. A number of African states practiced customary law centuries before colonial influences.
After colonization, these laws were written and incorporated to varying degrees into the legal systems imposed by their colonial powers. European Union Law – A sub-discipline of international law known as “supranational law” in which the rights of sovereign nations are restricted in relation to each other. Also known as European Union law or Community law, it is the unique and complex legal system that interacts with the laws of the 27 Member States of the European Union (EU). Like federal states, the EU legal system guarantees compliance by Member States due to the decentralised political nature of the Union. The Court of Justice of the European Union (CJEU), created by the Treaty of Paris in 1952, is largely responsible for the development of EU law. The basic principles of European Union law are: subsidiarity – the idea that matters are dealt with by the smallest, lowest or least centralised competent authority; Proportionality – the EU should only act to the extent necessary to achieve its objectives. Transfer – the EU is a union of Member States and all its powers are conferred voluntarily by its members; Legal certainty – requires legislation to be clear and precise; and the precautionary principle – a moral and political principle that if an act or policy is likely to cause serious or irreversible harm to the public or the environment, in the absence of a scientific consensus that no harm would occur, the burden of proof is on those who would support the measure. French Law – A type of civil law that is the legal system of France. The French system also serves as the basis for other legal systems in about 50 countries, particularly in North Africa, the Middle East and the French territories and dependencies. French law is primarily civil law codified or systematically written. Before the French Revolution (1789-1799), the France did not have a unified national legal system.
Laws in the northern regions of present-day France were mainly local customs based on privileges and exceptions of feudal kings and lords, while Roman law prevailed in the southern regions. The introduction of the Napoleonic Civil Code during the reign of Napoleon I in the first decade of the 19th century brought important reforms to the French legal system, many of which are still part of the current French legal structure, although all have been extensively modified or reformulated to please a modern nation. French law distinguishes between “public law” and “private law”. Public law refers to the government, the French Constitution, public administration and criminal law. Private law covers business between individuals or companies. The most recent changes to the French legal system introduced in the 1980s were the decentralization laws, which transferred authority from centrally appointed government officials to the locally elected representatives of the people. International law – The law of the international community or the set of customary and treaty rules accepted as legally binding by States in their mutual relations. International law differs from other legal systems in that it primarily concerns sovereign political entities. There are three distinct disciplines of international law: international law, which governs relations between provinces and international institutions and includes treaty law, maritime law, international criminal law and international humanitarian law; Private international law dealing with jurisdiction; and supranational law – a legal framework in which countries are bound by regional agreements in which the laws of member states are not applicable if they conflict with supranational laws. At present, the European Union is the only entity within a supranational legal system. The term “international law” was coined by Jeremy Bentham in 1780 in his Principles of Morality and Legislation, although the laws governing relations between states have been recognized since ancient times (several centuries BC). Modern international law evolved with the emergence and growth of European nation-states from the beginning of the 16th century.