LEGAL METHODS

Adversarial system

The adversarial system or adversary system is a legal system used in the common law countries where two advocates represent their parties' case or position before an impartial person or group of people, usually a jury or judge, who attempt to determine the truth and pass judgment accordingly.

Legislative intent/Judicial interpretation

The different ways the judiciary uses to interpret the law. When a statute is clear and unambiguous, the courts have said, repeatedly, that the inquiry into legislative intent ends at that point. It is only when a statute could be interpreted in more than one fashion that legislative intent must be inferred from sources other than the actual text of the statute.

Golden rule

The golden rule allows a judge to depart from a word's normal meaning in order to avoid an absurd result. The term "golden rule" seems to have originated in an 1854 court ruling, and implies a degree of enthusiasm for this arule of construction over alternative rules . For example, one judge made a point of including this note in a 1940 decision: "The golden rule is that the words of a statute must prima facie be given their ordinary meaning."[2]

Mischief rule

The main aim of the rule is to determine the "mischief and defect" that the statute in question has set out to remedy, and what ruling would effectively implement this remedy. In applying the mischief rule, the court is essentially asking what part of the law did the law not cover, but was meant to be rectified by Parliament in passing the bill.

Literal rule

The plain meaning rule dictates that statutes are to be interpreted using the ordinary meaning of the language of the statute. In other words, a statute is to be read word for word and is to be interpreted according to the ordinary meaning of the language, unless a statute explicitly defines some of its terms otherwise or unless the result would be cruel or absurd.

Conciliation

parties to a dispute use a conciliator, who meets with the parties both separately and together in an attempt to resolve their differences. They do this by lowering tensions, improving communications, interpreting issues, encouraging parties to explore potential solutions and assisting parties in finding a mutually acceptable outcome.

Eiusdem generis ("of the same kinds, class, or nature")

where "general words follow enumerations of particular classes or persons or things, the general words shall be construed as applicable only to persons or things of the same general nature or kind as those enumerated

Precedent

Principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts

Disadvantages of Precedent

Rigidity - The courts have some ways to move and avoid precedent but these are restricted. Undemocratic - Judges are there to apply the law. They are not in the courts to decide what the law should be. Unpredictable - If courts can avoid to follow precedent, or depart from their decisions, then court cases could be unpredictable.

Sources of Law

Sources of Law -Constitution of Kenya -Other written laws e.g statutes -Domesticated international laws/conventions Common law Equity Statutes of General Application Customary law Islamic Law

Statutory interpretation

Statutory interpretation is the process by which courts interpret and apply legislation. Some amount of interpretation is often necessary when a case involves a statute. Sometimes the words of a statute have a plain and straightforward meaning. But in many cases, there is some ambiguity or vagueness in the words of the statute that must be resolved by the judge. To find the meanings of statutes, courts use various tools and methods of statutory interpretation, including traditional canons of statutory interpretation, legislative history, and purpose.

Textual

Textual canons are rules of thumb for understanding the words of the text. Some of the canons are still known by their traditional Latin names.

Presumption

Where legislation and case law are in conflict, there is a presumption that legislation takes precedence insofar as there is any inconsistency.

The Legal/Legislative Process

(Parliament - National Assembly and senate) -Special Bills -Ordinary Bills -Presidential Assent and Referral -Coming into force -Legislative Authority of county assemblies -Resolution of conflict of laws between national and County Laws

Types of Cannons of statutory interpretation

1)Textual Cannons 11)Substantive cannons a) Literal rule b) Golden rule c) Mischief rule d) Interpretation according to the 'intentions of the legislature'

Advantages of Precedent

1. Certainty - if courts have to follow cases that have been set before, then it can be pretty easy to say how a case would turn out even before court proceedings are filed. 2. Flexibility. Through avoiding precedent, courts are able to depart from their own decisions and overrule other decisions. R v Brown and R v Wilson is an example of this as the courts could use methods of avoiding precedent, so they had flexibility with their decisions.

Stare decisis

A legal principle by which judges are obligated to respect the precedent established by prior decisions. the rule that a decision made by a superior court, or by the same court in an earlier decision, is binding precedent that the court itself and all its inferior courts are obligated to follow. The general principle is that a court should not overturn its own precedent unless there is a strong reason to do so and should be guided by principles from lateral and inferior courts

Advantages of ADR

ADR often saves money and speeds settlement. In ADR processes such as mediation, parties play an important role in resolving their own disputes. This often results in creative solutions, longer-lasting outcomes, greater satisfaction, and improved relationships. back to top

Alternative dispute resolution processes

Alternative dispute resolution (ADR) refers to a variety of processes that help parties resolve disputes without a trial. Typical ADR processes include mediation, arbitration, neutral evaluation, and collaborative law.

Inquisitorial system

An inquisitorial system is a legal system where the court or a part of the court is actively involved in investigating the facts of the case

Case

In Anaj Warehousing Limited v. National Bank of Kenya Limited 2011, court relied on National Bank of Kenya Limited v. Wilson Ndolo Ayah, Civil Appeal No.119 of 2002

Judicial process

Everything done by judge in the process of delivery of justice is called Judicial Process .The judicial process is a set of interrelated procedures and roles for deciding disputes by an authoritative person or persons whose decisions are regularly obeyed. The disputes are to be decided according to a previously agreed upon set of procedures and in conformity with prescribed rules.

Common law case technique

Doctrine of precedent, and 'stare decisis'

Substantive canons

Instruct the court to favor interpretations that promote certain values or policy results. ... In construing an ambiguous criminal statute, the court should resolve the ambiguity in favor of the defendant.

Expressio unius est exclusio alterius ("the express mention of one thing excludes all others")

Items not on the list are impliedly assumed not to be covered by the statute or a contract term.However, sometimes a list in a statute is illustrative, not exclusionary. This is usually indicated by a word such as "includes" or "such as."

Obiter dictum

Latin for a word said "by the way",[1] that is, a remark in a judgment that is "said in passing". It is a concept derived from English common law, whereby a judgment comprises only two elements: ratio decidendi and obiter dicta. For the purposes of judicial precedent, ratio decidendi is binding, whereas obiter dicta are persuasive only

Ratio decidendi

Latin phrase meaning "the reason" or "the rationale for the decision". The ratio decidendi is "the point in a case that determines the judgment"[1] or "the principle that the case establishes"

Mediation

Mediation is also an informal alternative to litigation. Mediators are individuals trained in negotiations, who bring opposing parties together and attempt to work out a settlement or agreement that both parties accept or reject.

Negotiation

Negotiation allows the parties to meet in order to settle a dispute. The main advantage of this form of dispute settlement is that it allows the parties themselves to control the process and the solution.

Canons of Construction

The system of basic rules and maxims applied by a court to aid in its interpretation of a written document, such as a statute or contract.

Sources of Law acts

The various sources of law of Kenya are identified by the Judicature Act cap 8, Kadhis Court Act, the Constitution, Hindu Marriage and divorce Act and the Hindu Succession Act.

Arbitration

a neutral person called an "arbitrator" hears arguments and evidence from each side and then decides the outcome. Arbitration is less formal than a trial and the rules of evidence are often relaxed. In binding arbitration, parties agree to accept the arbitrator's decision as final, and there is generally no right to appeal. In nonbinding arbitration, the parties may request a trial if they do not accept the arbitrator's decision.