Introduction to Law and Governance Revision Kit

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Introduction to Law and Governance Revision Kit

Full Access to these notes/Kit on Desktop/Laptop via https://desktop.someakenya.co.ke
Or through Our Mobile App

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Full Access to these notes/Kit on Desktop/Laptop via https://desktop.someakenya.co.ke
Or through Our Mobile App

Click here to Install Our Mobile App and Download Current CPA Revision Kits and Revise using your Phone

TOPIC 1

NATURE, PURPOSE AND CLASSIFICATION OF LAW

QUESTION 1

December 2023 Question Two B

State THREE functions of law. (3 marks)

ANSWER

Social Control: This function ensures a predictable and stable society by establishing expected behaviors and punishing those who deviate from them. The law acts as a formal system, setting clear rules and enforcing them.
Dispute Settlement: Law provides a framework for resolving disagreements between individuals or groups. This prevents violence and ensures fair resolution of conflicts, often through courts or alternative methods.
Social Change: Law can be a tool for enacting social change in a planned and controlled way. The flexibility of law allows it to adapt to evolving social conditions, preventing unrest and facilitating progress.
Regulation: Law regulates behavior within society by establishing rules and standards that govern interactions between individuals, groups, and institutions. This function helps maintain order and stability.
Protection: One of the primary functions of law is to protect the rights and interests of individuals and groups. This includes safeguarding fundamental human rights such as freedom of speech, religion, and assembly, as well as protecting property rights, contractual agreements, and personal safety.
Promotion of justice: Law plays a crucial role in promoting justice by ensuring fair treatment and equality under the law. It establishes principles of fairness, impartiality, and due process, and provides avenues for seeking redress when injustices occur.
Facilitation of social change: Law can serve as a tool for promoting social change and progress by enacting new legislation or reforming existing laws to address emerging issues, promote equality, and adapt to evolving societal norms and values.
Preservation of order and stability: Law contributes to the preservation of order and stability within society by providing a framework for the functioning of institutions, the enforcement of rules, and the resolution of conflicts. It helps mitigate the potential for chaos and ensures predictability and consistency in governance.
Promotion of public welfare: Law is often used to advance the public interest and promote the welfare of society as a whole. This may involve the regulation of industries to protect public health and safety, the provision of social services, or the establishment of environmental protections.

QUESTION 2

August 2023 Question One B

Highlight SEVEN characteristics of a good law. (7 marks)

ANSWER

Characteristics of a good law

Just:A good law promotes fairness and equity, ensuring everyone is treated equally under the law.
Clear and concise:The law should be written in understandable language, avoiding ambiguity and confusion for those who need to follow it.
Enforceable:A good law has clear mechanisms for enforcement, with designated authorities and appropriate penalties for violations.
Effective:The law should achieve its intended purpose, effectively addressing the issue it was created to tackle.
Respectful of rights:A good law should protect fundamental rights and freedoms, striking a balance between individual liberty and societal needs.
Stable, yet adaptable:While providing predictability, a good law should have the flexibility to adapt to changing social circumstances over time.
Publicly known:A good law is accessible to the public, allowing citizens to understand their rights and responsibilities under the law.

QUESTION 3

April 2023 Question One B

List FIVE types of substantive law. (5 marks)

ANSWER

Substantive law is the set of laws that governs how members of a society are to behave. It is contrasted with procedural law, which is the set of procedures for making, administering, and enforcing substantive law. Types of substantive law are:

The Law of torts
The Law of succession
The Law of contract
The Law of marriage
The Penal Code

QUESTION 4

April 2023 Question Two A

Summarise FOUR differences between “civil” and “criminal cases”. (8 marks)

ANSWER

Differences between “civil” and “criminal cases

Civil case	Criminal case
offence against another individual	Offence against the state
To deal with the disputes between individuals, organizations, or between the two, in which compensation is awarded to the victim.	To maintain the stability of the state and society by punishing offenders and deterring them and others from offending.
Claimant must produce evidence beyond the balance of probabilities.	Beyond reasonable doubt
The plaintiff, the party that is suing. The defendant , the one being sued	Prosecution which represent the state and the accused
Claimant must give proof however, the burden may shift to the defendant in situations of Res Ipsa Loquitur (The fact speaks for itself).	“Innocent until proven guilty”: The prosecution must prove defendant guilty.
Compensation (usually financial) for injuries or damages, or an injunction in nuisance.	A guilty defendant is subject to Custodial (imprisonment) or Noncustodial punishment (fines or community service). In exceptional cases, the death penalty.

QUESTION 5

April 2023 Question Five B and C

b) Describe the procedure of making laws in parliament. (8 marks)

ANSWER

b) The law making process begins by Bills being passed by the National Assembly.

The Bill passes through the following stages to become law

First reading
Second reading
Committee stage
Reporting stage
Third reading
President’s Assent

Before the first reading, the Bill is published in the Kenya Gazette for information purposes. All bills must be published in the Kenya Gazette to inform the public and parliamentarians of the intended law. As a general rule, a Bill must be published at least 14 days before introduction to the National Assembly. However, the National Assembly Is empowered to reduce the number of days.

First reading: Under this stage, the clerk reads out only the title of the bill. No debate or vote takes place here. After the first reading the date for the second reading is fixed. If the Bill is approved at this stage, then it is printed and circulated among the members of Parliament to enable them prepare for a debate of this Bill. This Is the Introductory stage of law making.
Second reading: This is the most important stage of the bill. At this stage the Minister or the member in charge of the Bill explains the main feature of the Bill. A debate takes place and the members of the house are allowed to participate in the debate.
Committee stage: It the bill is passed at the second reading, then it moves to the committee stage. Here the details of the various aspects contained in the bill are analysed and scrutinized by the committee of the whole house or a select committee which consists of some selected members of the house.
Report Stage: After scrutiny and analysis at committee stage, the report of the same is submitted to the house. If any amendments are made at the committee stage, the same are debated again, then the bill moves to the third reading if approved
Third reading: Here there are no much debates. A final vote is given after minimal debate, and if approved, the bill is said to have been passed
President’s Assent: A bill passed by the National Assembly does not become law until the President gives his assent. The President may refuse to give his assent if in his opinion the bill does not serve the best interest of the people. A bill becomes a law as scan as it gets the President’s assent.

c) Problems/shortcomings of common law
Writ System: Cases at common Law were commenced by a writ issued by the Royal office. There were separate writs for different complaints. However, This system did not recognize all possible complaints and many would be plaintiffs had no access to the courts, The writ system encouraged corruption AND It lengthened the course of justice
Rigidity/inflexibility: The common Law courts applied the doctrine of Stare Decisis. This practice rendered the legal system rigid and hence unresponsive to changes.
Procedural technicalities: The Common Law procedure of administration of justice was highly technical. Common Law courts paid undue attention to minor points of procedure and many cases were often lost on procedural matters.
Delays: The administration of justice at common Law was characterized by delays. Defendants often relied on standard defenses to delay the course of justice. These defenses were referred to as essoins and included; Being out by floods, being unwell or being away on a crusade. If sickness was pleaded, the case could be adjourned for 1 year and 1 day.
Non-recognition of trusts: Common Law did not recognize the trust relationship. This is an equitable relationship whereby a party referred to as a trustee, expressly, impliedly or constructively holds property on behalf of another known as beneficiary. At common Law beneficiaries had no remedies against errant trustees and trustees had no enforceable rights against beneficiaries.
Inadequate remedies: Common Law courts had only one remedy to offer namely monetary compensation or damages. They could not compel performance or restrain the same.
Inadequate protection of borrowers: At common Law, a borrower who failed to honour his contractual obligations within the contractual period of repayment would lose not only his security but the total amount paid.

TOPIC 2

ADMINISTRATIVE LAW

QUESTION 1

April 2024 Question Four A and B

a) With reference to the principles of natural justice, explain the following:

(i) Nemo judex in causa sua. (2 marks)

(ii) Audi alteram partem. (2 marks)

(b) Explain the doctrine of separation of powers in the context of the Constitution in your country. (6 marks)

ANSWER

a) (i) “Nemo judex in causa sua” is a Latin phrase that translates to “no one should be a judge in their own case.” This principle embodies the idea that a person who has a vested interest in the outcome of a dispute or a case should not be the one making decisions about it. It ensures fairness and impartiality in legal proceedings by preventing individuals from acting as both judge and party to a case simultaneously.

(ii) “Audi alteram partem” translates to “hear the other side” or “listen to the other party.” This principle emphasizes the importance of giving both sides an opportunity to present their arguments and evidence before a decision is made. It is a fundamental aspect of procedural fairness, ensuring that all parties involved have a chance to be heard and respond to the arguments and evidence presented against them

(b) Explain the doctrine of separation of powers in the context of the Constitution in your country. (6 marks)

b) Doctrine of separation of powers

The doctrine of separation of powers in the Kenyan Constitution is aimed at preventing the concentration of power in any single branch of government, promoting accountability, and safeguarding democracy and the rule of law.

In the context of the Constitution of Kenya, the doctrine of separation of powers refers to the division of governmental authority and functions among three distinct branches: the executive, the legislature, and the judiciary. Each branch has its own responsibilities, powers, and limitations, and they are meant to act independently of each other while also providing checks and balances to ensure that no single branch becomes too powerful.

Executive Branch: The executive branch is responsible for implementing and enforcing laws. It is headed by the President, who is the head of state and government. The President appoints members of the Cabinet and oversees government agencies and departments. The executive branch is primarily tasked with the administration of public affairs, including the implementation of policies and the execution of laws passed by the legislature.
Legislative Branch: The legislative branch is responsible for making laws. It consists of the National Assembly (the lower house) and the Senate (the upper house). Members of these houses are elected by the Kenyan people. The legislative branch has the authority to introduce, debate, and pass laws, as well as to scrutinize the actions of the executive branch. It also has the power to amend the constitution and approve budgets.
Judicial Branch: The judicial branch is responsible for interpreting laws and ensuring their constitutionality. It is independent of the other branches and consists of various courts, including the Supreme Court, the Court of Appeal, the High Court, and subordinate courts. The judiciary has the power to adjudicate disputes, protect individual rights, and review the actions of the executive and legislative branches to ensure they comply with the constitution.

The Constitution of Kenya explicitly establishes the separation of powers and provides mechanisms for each branch to check and balance the powers of the others. For example, the President can veto legislation passed by the legislature, but this veto can be overridden by a two-thirds majority vote in the National Assembly and the Senate. Similarly, the judiciary can review the constitutionality of laws passed by the legislature and actions taken by the executive branch.

QUESTION 2

August 2023 Question Three B

Distinguish between primary legislation and delegated legislation. (4 marks)

ANSWER

Primary Legislation vs. Delegated Legislation

Primary Legislation: Primary legislation, also known as statute law or Acts of Parliament, is the highest form of law in a legal system. It is drafted and passed by the legislative body of a country, such as a parliament or congress. Primary legislation sets out the fundamental principles and framework of laws that govern a society. These laws are usually broad in scope and provide the foundation for legal systems to operate.

Delegated Legislation: Delegated legislation, on the other hand, refers to laws made by authorities other than the legislature, which have been granted the power to do so by primary legislation. This type of legislation allows for the details and practicalities of laws to be filled in by government ministers, local councils, or other bodies with delegated authority. Delegated legislation is more specific and can cover a wide range of matters, from technical details to specific regulations within a broader legal framework.

Distinguishing Factors:


Authority	Created by the legislative body with full authority	Delegated legislation is made by entities authorized by primary legislation
Scope	establishes fundamental principles	Deals with specific details and implementation.
Flexibility	Allows for quicker adjustments and adaptations to changing circumstances	Its rigid process of amending primary legislation.

QUESTION 3

August 2023 Question Four B

Argue THREE cases for the independence of the judiciary. (6 marks)

ANSWER

Cases for the independence of the judiciary

Safeguard against Abuse of Power: One of the primary arguments for the independence of the judiciary is that it serves as a crucial safeguard against the abuse of power by the executive or legislative branches of government. When the judiciary is independent, it can act as a check on the other branches, ensuring that they adhere to the rule of law and do not overstep their constitutional limits. Without judicial independence, there is a risk that those in power may manipulate the legal system for their own benefit, undermining democracy and the rights of citizens.
Impartial Adjudication: Another key reason for advocating judicial independence is to ensure impartial adjudication. Judges must be free from external pressures or influences in order to make fair and unbiased decisions based solely on the law and evidence presented before them. If the judiciary is not independent, there is a danger that judges could be swayed by political interests or personal biases, compromising the integrity of the legal system and eroding public trust in the judiciary.
Protection of Human Rights: Independence of the judiciary is essential for protecting human rights and upholding the rule of law. A strong and independent judiciary is better equipped to defend individual rights and liberties against encroachments by the government or other powerful entities. By remaining free from interference, judges can ensure that justice is served without fear or favor, promoting equality before the law and preserving fundamental freedoms for all members of society.

QUESTION 4

April 2023 Question Seven A

Explain the term “Administrative Law”. (2 marks)

ANSWER

Administrative Law refers to the law relating to public administration. It is the law relating to the performance, management and execution of public affairs and duties. Administrative law is concerned with the way in which the Government Government carries out its functions.

QUESTION 5

December 2022 Question One B(ii)

Describe TWO rules of statutory interpretation. (4 marks)

ANSWER

Rules of statutory interpretation

Literal Rule: This is the primary rule of statutory interpretation. It is to the effect that where the words of statute are clear and exact, they should be given their literal or natural, dictionary or plain meaning and sentences should be accorded their ordinary grammatical meaning. However, technical terms and technical legal terms must be given their technical meanings. This rule was explained in -v- City of London Court Judge. Under this rule, no word is added or removed from the statute.
Golden rule: This rule is to some extent an exception to the literal rule. It is applied by courts to avoid arriving at an absurd or repugnant or unreasonable decision under the literal rule. Under this rule, a court is free to vary or modify the literal meaning of a word, phrase or sentence as to get rid of any absurdity.
Mischief Rule: (Rule in Heydons case) This is the oldest rule of statutory interpretation. Under the rule, the court examines the statute to ascertain the mischief it was intended to remedy and then inteprete it in such a way as to advance the remedy and suppress any mischief. This rule was explained by Lord Coke in Heydons case (1584) and applied in Smith V.Hughes (1961)
Ejus dem generis Rule: This rule is applied to interpret words of the same genus and species. It is to the effect that where general words follow particular words in the statute, the general words must be interpreted as being limited to the class of persons or things designated by the particular words.
Noscitur a sociis: This rule literally means that a word or phrase is known by its companions. It is to the effect that words of doubtful meanings derive their meaning and precision from the words and phrases with which they are associated.
Expressio unius est exclusio ullerius: This rule literally means that the expression of one thing excludes any other of the same class. This rule is to the effect that where a statute uses a particular term without general terms the statutes application is restricted to the instances mentioned.
Rendendo singula singullis: This rule is to the effect that words or phrases variously used in a statute must be accorded the same meaning throughout the statute.
A statute must be interpreted as a whole: This rule is to the effect that all words, phrases and sentences must be given their due meaning unless meaningless. All conflicting clause must be reconciled unless irreconcilable.
Statutes in pari material: The interpretation of one statute is used in the interpretation of another related (similar) statute.

QUESTION 6

December 2022 Question Seven C

Explain FOUR remedies in administrative law. (8 marks)

ANSWER

Remedies in administrative law

In administrative law, remedies refer to the legal remedies available to individuals or organizations that have been adversely affected by the actions or decisions of administrative agencies or bodies. These remedies may be sought through administrative or judicial processes, depending on the specific circumstances of the case.

There are several types of remedies that may be available in administrative law, including:

Injunctive relief: This type of remedy is a court order that directs an administrative agency or body to take a specific action or refrain from taking a certain action.
Declaratory relief: This type of remedy involves a court issuing a declaration stating its interpretation of the law as it applies to a specific case.
Mandamus: This type of remedy is a court order directing an administrative agency or body to perform a specific action that it has a legal duty to perform.
Damages: In some cases, individuals or organizations may be entitled to damages if they have suffered harm as a result of the actions or decisions of an administrative agency or body.
Judicial review: This type of remedy involves a court reviewing the actions or decisions of an administrative agency or body to determine if they are in accordance with the law.
Prohibition: A prohibition will generally be granted to stop or prohibit a decision before it has been made. However it may also be granted after a decision has been made

QUESTION 7

August 2022 Question Five C

Explain four ways in which the independence of the judiciary could be achieved. (4 marks)

ANSWER

Ways in which the independence of the judiciary could be achieved

By providing security of tenure for judicial officers. Can only be dismissed in accordance with the constitution.
Economic independence i.e. adequate financial provisions to judicial officers. Remuneration/benefits given to judges cannot be varied in such a way as to disadvantage them.
Immunity from court action for actions taking place in the course of judicial proceedings.
Appointment of persons of unquestionable professional and moral integrity
Judiciary is established by the constitution as an arm of the national government.
Its authority is guided/controlled by the constitution when carrying out its mandate.
The appointment of magistrates is done by the Judicial Service Commission in order to guarantee its independence.

UNIT DESCRIPTION

This paper is intended to equip the candidate with the knowledge, skills and attitude that will enable him/her to apply the principles of law and legal systems in an entity and ensure compliance with basic principles of governance and ethics.

LEARNING OUTCOMES

A candidate who passes this paper should be able to:

Demonstrate knowledge of essential elements of the legal system
Demonstrate knowledge of legal personality
Apply law of contract and tort in various scenarios
Apply general principles of business law in practice
Apply fundamental principles of ethics in practice
Comply with fundamental principles of governance

CONTENT

Nature, Purpose and Classification of Law

1.1 Meaning of law
1.2 Nature of law
1.3 Purpose of law
1.4 Classification of law
1.5 Law and morality
1.6 The Constitution
1.7 Legislation and delegated legislation
1.8 Substance of common law and doctrines of equity
1.9 African customary law
1.10 Islamic law, Hindu law and African customary law
1.11 Judicial precedence
1.12 General rules of International law and ratified treaties

Administrative Law

2.1 Meaning of administrative law
2.2 Sources of administrative law
2.3 Functions of administrative laws
2.4 Doctrine of separation of powers
2.5 Delegated legislation
2.6 Control of delegated legislation
2.7 Discretion and Judicial count of executive
2.8 Liability of state (contractual/ tortious)
2.9 Principles of natural justice
2.10 Judicial control of the Executive
2.11 Independence of Judiciary
2.12 Remedies in administrative law (mandamus, certiorari, prohibition, habeas corpus; injunction and declaration)

The Court System

3.1 Establishment, structure, composition and jurisdiction of courts
3.2 Supreme Court
3.3 Court of Appeal
3.4 High Court
3.5 Employment and Labour Relations Court
3.6 Environmental and Land court
3.7 International Court of Justice
3.8 Magistrates Court
3.9 Court Martial
3.10 Kadhi’s Court
3.11 Distinction between Courts and Tribunals

Alternative Dispute Resolutions (ADR)

4.1 Nature of alternative dispute resolutions (ADR)
4.2 Nature and types of disputes
4.3 Legal framework governing ADR
4.4 General principles of ADR
4.5 Negation and Conciliation
4.6 Mediation
4.7 Arbitration
4.8 Dispute Review Boards
4.9 Traditional dispute resolution mechanisms

Law of Persons

5.1 Natural and artificial persons
5.2 Nationality, citizenship and domicile
5.3 Unincorporated and incorporated associations
5.4 Co-operative societies

Law of Tort

6.1 Nature of tort
6.2 General defenses under tort
6.3 Negligence
6.4 Types of liabilities in tort
6.5 Trespass
6.6 Limitation and survival of actions
6.7 Remedies in tort
6.8 Principles in awards damages
6.9 Defamation

Law of Contract

7.1 Definition of a contract
7.2 Classification of contracts
7.3 Essentials of a valid contract
7.4 Terms of a contract
7.5 Exemption clauses
7.6 Vitiating factors
7.7 Discharge of contract
7.8 Remedies for breach of a contract
7.9 Limitation of actions
7.10 Contract negotiation
7.11 Information technology and the law of contract

Sale of Goods

8.1 Nature of the contract of sale of goods
8.2 Types of goods
8.3 Formalities of the contract
8.4 Terms of the contract
8.5 Implied terms by statute, custom/usage
8.6 Rights and duties of the parties
8.7 Remedies for price and breach of contract
8.8 Auction sales
8.9 International contracts of sale: FAS, FOB, CIF, FCA, CPT, CIP, DAT, DAP, DDP, CFR, DAF, DDU, Ex-works and Ex-ship

Agency

9.1 Meaning and nature of the agency contract
9.2 Types of agents
9.3 Parties to the agency relationship
9.4 Creation of agency
9.5 Authority of an agent
9.6 Rights and duties of the parties
9.7 Personal liability of agents
9.8 Liability of the parties
9.9 Termination of agency

Partnership

10.1 Nature of partnership
10.2 Registration process and requirements of partnership business
10.3 Types of partnerships
10.4 Rights, duties and liabilities of existing, incoming and minor partners
10.5 Management of partnerships
10.6 Dissolution of partnerships and its consequences

Indemnity and Guarantees

11.1 Essential features of indemnity
11.2 Nature and extent of liability of indemnifier
11.3 Commencement of liability of indemnifier
11.4 Nature of the contracts; essential features of contract guarantee; distinction between contract of guarantee/ indemnity extent of nature and surety
11.5 Obligations of surety
11.6 Discharge of surety
11.7 Letters of credit
11.8 Rights and duties of the parties
11.9 Termination of the contract
11.10 Remedies for breach of contract

Insurance

12.1 Nature of the contract; types, parties to negotiable instrument
12.2 Formalities of the contract
12.3 Types of risks
12.4 Parties to the contract of insurance
12.5 Principles of insurance
12.6 Types of insurance
12.7 Transfers and amalgamation
12.8 Termination of the contract
12.9 ICT and insurance

Negotiable Instruments

13.1 Nature and characteristics
13.2 Negotiability of the instrument
13.3 Types: Cheques, promissory notes, bills of exchange
13.4 Types of crossings
13.5 Obligations of the parties
13.6 Banker- customer relationship
13.7 Presentment; purpose, time, place
13.8 Discharge from liability
13.9 Modes of discharge
13.10 Dishonour, mode of dishonour, nature of protest, penalties for dishonour
13.11 Acceptance for honour
13.12 Criminal liability

The Law of Property

14.1 Definition of property
14.2 Classification of property (real and personal, movable and immovable, tangible and intangible)
14.3 Property in land: Private, public and community land
14.4 Interests in land: Estates, servitudes and encumbrances
14.5 Intellectual property: Plant breeder’s patents, trademarks, copyrights and industrial designs
14.6 Administration and management of land
14.7 Sectional properties
14.8 Management company
14.9 Obligations of lessor and lessee in sessional property Act
14.10 Transfer of land rights
14.11 Role of professionals (Advocates, Certified Secretaries) in land transactions

Introduction to corporate governance

15.1 Corporate governance – Definition and objects
15.2 Principles of corporate governance
15.3 Best practice in corporate governance
15.4 Role of stakeholders (shareholders, Board of Directors, Government)
15.5 Conflict of interest – Investor education and protection of shareholders
15.6 Compliance obligations
15.7 Legal Audit- definition and objects

Professional Ethics

16.1 Introduction and overview of professional ethics
16.2 Professional misconduct
16.3 Publicity and advertisement
16.4 Morality and etiquette
16.5 Professional ethics for accountants, corporate secretaries
16.6 Ethics and practice within a firm
16.7 Enforcement of professional ethics and standards

Introduction to Law and Governance Revision Kit

Past papers exam questions and answers

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