Introduction to law and governance

• Law


  No assigned meaning, used in a variety of senses. The study of the nature of law is known as Jurisprudence
• Schools of jurisprudence/thought


  • Positivism
  • Historical School
  • Natural School
  • Sociological School
  • Marxist School
• Jurisprudence


  The study, knowledge, or science of law. In the US, commonly means the philosophy of law
• Hart's view of law

  Law is a coercive instrument for regulating social behaviour. This is the Command Theory, which assumes the existence of a sovereign with the power to impose penalties/sanctions for compliance
• Marxist view of law

  Law serves the interests of the dominant classes in society
• Salmond's definition of law

  Law is a body of rules or principles recognized and applied by the state in the administration of justice
• Law


  A body of binding rules of human conduct prescribed by human beings for the obedience of human beings
• Morality


  The sense of judgement between right and wrong by reference to certain standards developed by society over time. It consists of standards of behaviour widely used by a society and is binding on the conscience of the members of that society
• Morality and law


  Morality is not enforceable by courts of law, unlike rules of law which are binding, enforceable and have sanctions in all cases
• Wrongs in society


  Can be contraventions of law or morality or both
• Where law and morality overlap

  Morality is enforced as a rule of law
• Unjust laws


  Prove that morality and law are not identical and do not coincide
• Laws that defend basic values

  Prove that morality and law can work together
• Virtuous person


  Does the appropriate thing because it is the right or noble thing to do, not because not doing it will result in punishment
• Functions and purposes of law

  • Promotes peaceful coexistence/maintenance of law and order/prevents anarchy
  • Standard setting and control mechanism
  • Protects rights and enforces duties
  • Facilitating and effectuating private choice
  • Resolves social conflicts
  • Controls and structures public power
• Classification/types of law


  • Written and Unwritten
  • Municipal (National) and International
  • Public and Private
  • Substantive and Procedural
  • Criminal and Civil
• Written law


  Codified law, rules contained in formal documents
• Unwritten law


  Rules of law not contained in any formal document, existence must be proved
• Municipal/national law


  Rules of law applicable within a particular country or state, regulating relations between citizens and between citizens and the state
• International law


  Body of rules regulating relations between countries or states and other international persons
• Public law


  • Criminal Law
  • Constitutional Law
  • Administrative Law
• Private law


  • Law of contract
  • Law of property
  • Law of succession
  • Law of marriage
  • Law of tort
• Substantive law


  Rules themselves, defines rights and duties of parties and prescribes remedies
• Procedural law


  Steps or guiding principles/rules of practice to be complied with in the administration of justice or application of substantive law
• Criminal law


  Law of crimes, acts or omissions committed in violation of public law
• Branches of civil law

  • Law of contract
  • Law of torts
  • Law of property
  • Law of marriage
  • Law of succession
• Cause of action


  Violation of a person's civil or private rights
• Examples of causes of action

  • Breach of contract
  • Defamation
  • Assault
  • Negligence
  • Trespass to goods
• Burden of proof in civil cases

  On a balance of probabilities or on a preponderance of probabilities, the court must be satisfied that it is more probable than improbable that the plaintiff's allegations are true
• Remedies in civil cases

  • Damages (monetary compensation)
  • Injunction
  • Specific performance
  • Account
  • Tracing
  • Winding up a company
  • Appointment of receiver
• Sources of law in Kenya

  • The Constitution
  • Statute law/Legislation
• The Constitution


  The single formal document which defines the composition and powers of different organs of the state or the institution and their relationship with each other and to private citizens. It is the most important source of law in Kenya
• Supremacy of the Constitution

  The Constitution is the supreme law, its validity/legality is not challengeable, any act/omission in contravention of it is invalid, it is binding on all persons and state organs, state authority must be exercised as authorized by it, every person is obligated to respect, uphold and defend it, any attempt to establish a government without complying with its requirements is unlawful
• Classification of Bills


  • Government bills
  • Private bills
  • Private members' bills
  • Public bills
• Legislative process


  1. Drafting of the bill

  2. Publication of the bill

  3. First reading

  4. Second reading

  5. Committee stage

  6. Report stage

  7. Third reading
• Legislative process in parliament

  1. Debate

  2. Vote

  3. Committee stage

  4. Report stage

  5. Third reading

  6. President's assent

  7. Gazettement
• If the bill is supported by a simple majority of members present, it passes to the committee stage, if not, it is said to have been "shot down" but may be brought back to parliament after six months
• Committee stage


  1. Details of the bill are discussed, clause by clause and possibly amended

  2. Bill may be dealt with either by the committee of the whole house or may be sent to a smaller (select) committee

  3. For exceptionally important legislation e.g. constitutional amendment, the bill will be referred to the whole house sitting as committee
• Report stage


  1. Findings of the committee are reported back to the house by the chairman of the committee

  2. House debates the proposed amendments

  3. Once approved, the bill goes to the third reading
• Third reading


  1. Principles of the bill are not debated and only minor drafting changes are made

  2. Final vote is taken

  3. If the bill is approved, it is said to have been passed by the National Assembly