Kenya Law Reports Primer
Kenya Law Reports is essential to our understanding of law in Kenya as they are the official reports of decisions from the Kenyan High Court. The first volume of the law reports was published in 1948. While the formal publication of these reports began then, there were a number of reports by the Eastern African Law Reports before 1948. Over the past 60 years there have been consistent yearly publications of the Supreme Court and Court of Appeal combined into one volume.
According to the Kenyan Law Reports, the history of the law reports goes back to the coming into force on 12 August 1941 of the Eastern African Court of Appeal. Fifty years earlier, in 1890, the British Crown assumed the colonies of Kenya, Uganda and Tanzania. In 1919, these dependencies were incorporated into the East African Court system. The Court had residency in both Dar es Salaam and Mombasa and later moved to Nairobi. The judges of the East African Court of Appeal were stationed in their home countries. In 1897, the case Janson v The King’s African Rifles, the court ruled that until a contrary statute, the common law of England was in force in these territories. Governor of Kenya v Chege and another , the court held that the common law of England applied in Kenya. In Cox v Odhuno, the court saw the reference the common law of England as a source of law in Kenya.
During the Colonial period the law reports were produced by the Government Printer. In 1963 with Kenya as an independent Republic and having its own Constitution, the Judicial Service Commission (JSC) took over the responsibilities of publishing the law reports. It was at this point that the Chief Justice appointed Kenya Law Reports as the official publishers of the law reports replacing the Government Printer.
The JSC has made improvements over the years. In June of 2003, the law reports were published online http://kenyalaw.org/ and was updated weekly. In July of 2011, they started charging fees to access this site. In September the site became free once again. The latest innovation allows for the use of mobile devices to access this database of legal information.
Over the years, various changes have been introduced to the law reports which lead to the introduction of the quarterly published Kenya Law Reports and The Law Reports to bring together several decisions from various courts of record.
The Structure of the Laws of Kenya
Comprehensive Guide to Kenya Law Reports and the Laws of Kenya
Structure of the Laws of Kenya
The laws are classified into two distinct categories of the written laws and customary law. Written laws have been enacted and published as Laws of Kenya which is a convenient re-compilation and consolidation of all the laws of Kenya while customary law has not been enacted but it is observed as a source of law. There are many indigenous interpretations of customary law in Kenya. The customary law of one sub-ethnic group may be different from the customary law of another group and this forms part of international recognized Human Rights standards. Under the Law Revision Act, Section 3, the written laws have been classified into three (3) main categories: i. The Constitution ii. Statutes iii. Subsidiary Legislation The Constitution is conferred by the Constitution of Kenya (Amendment No.5) Act, 1989, the status of primary legislation. It is the supreme law of the land as outlined in the chapter on fundamental rights and freedom an individual cannot be deprived of his liberty unless he is charged with an offence. Statutes Statutes are either Public Statutes or Private Statutes. They can also be categorized as: i. Principal Laws(have been enacted by Parliament for the first time and have no predecessors) ii. Repeal Laws( they delete certain provisions of a principal Law or amend it) and iii. Amendment Laws( which correct minor errors in a principal law. Subsidiary Legislation These are made under the authority of a written law. They are the latest additions to the laws of Kenya. They are made without following the full procedures of a Bill and this makes them the most valuable additions to the Laws of Kenya.
How to Access the Kenya Law Reports
While some consolidated regulation in the form of the Kenya Gazette Supplement, for example, is available on the e-citizen platform, access to case law is still largely dependent on connectivity – in the form of internet access, for those consulting on-line materials or local knowledge (contacting fellow practitioners when out on work or travel) for those using paper versions of the reports.
In June 2016 the National Council for Law Reporting site underwent a major refresh, which has improved usability. The archives and central search platforms were updated at the same time. The site now links to jurisdiction-specific case law, legal information and law reform sites. The individual law reports no longer appear as full PDFs on the site, taking time to load; instead they are in HTML in separate elements for the opposing parties involved in the case, and there is a pdf icon on the right, providing an accessible document without compromising the speed of the page.
The individual journal-like reports, available to download as PDFs or in printed format from the KLRC, are supplemented by the electronic edition on the KLRC site. This mirrors the printed version, with the addition of editorial headnotes, cross-references and the table of cases. The site provides an extensive browse facility, with search functions for subject, party name, section and judge. The use of metadata is extensive, with tags used for new law reports, the legal year to which they relate, the name of the judge (in particular for the Court of Appeal, as many judgments are penned concurrently by judges, with the individual ones being distinguished within), key words, and the appeal number, enabling a hyperlink to the lower court proceedings.
On the KLRC site, at the bottom right, users can be linked through to the Kenyan Legal Information Institute, a project of the Free Access to Law Movement, which makes freely available African public legal information on the Internet.
In addition, the Kenya Law Resource Center is available at the Kenya School of Law at Mbagathi Campus, Nairobi. The Center houses the print copies of law reports and the current volumes of the Kenya Gazette.
There is public access to these online platforms (and the paper versions at the Kenya School of Law), as well as to paid databases such as Westlaw.
Landmark Cases in the Kenya Law Reports
The Kenya Law Reports (KLR) and Laws of Kenya formalize and document these instrumental cases. For instance, in the landmark case of Re-Sixteen International (Kyandi Enterprises) Limited (2013) eKLR, the High Court reviewed the winding up procedure of a company in Kenya under commercial bankruptcy proceedings. It held that a company could be wound up on the grounds of failure to discharge an amount due to a creditor who had been given permission to deal with real property without taking a caution or registering a charge in his favour. This case refined the understanding of company law in Kenya, echoing similar precedents in appellate jurisdictions throughout the Commonwealth.
Another notable decision outlined in the KLR is that of Republic v Chairman, Kenya Revenue Authority and 2 Ors (2009) eKLR. Here , the Court held that the assessment of the tax results in a reduction in the revenue due to the government. The Court detailed that the Commissioner had to act as both a tax collector and a taxpayer, and must be fair to both. The decision restated the role of the Kenya Revenue Authority in administering, assessing, and collecting tax.
The case of Homeline Investment Limited v Kenya Power and Lighting Co. Ltd (2013) eKLR highlighted the fact that supplies of electricity, being such a basic need, are only to be interrupted under limited circumstances in a bid to protect consumers. The Court held that the circumstances under which the defendant company was entitled to terminate the contract for the supply and installation of electricity were not proved to have occurred, resulting in the Court denying the prayer for a mandatory injunction by the Plaintiff. These cases can be researched further through the subscription services provided by the Kenya Law Reports.
Significance of Kenya Law Reports in Legal Practice
The importance of the Kenya Law Reports (KLR) to legal practitioners cannot be overstated. As an official publication of the Judiciary of Kenya, KLR is the sole source of authoritative reports of decisions from the Supreme Court, Court of Appeal, and the High Court of Kenya, as well as exceptional decisions from subordinate courts. It provides a meticulous compilation of case law, which is critical for legal practitioners when preparing legal arguments for reliance in representing their clients in court. It serves as their bible of forms of argument and precedent as presented in court.
Practitioners use this trove of intellectual property in the preparation of their legal arguments by signing the Kenya Law Library User Agreement, a contract set out in the 2009 Kenya Gazette Notice No. 1537. This agreement gives them authority to use the work which is published in the Kenya Law Reports as case law. Legal practitioners use KLR passed down through judicial history and are never charged fees to print the contents of KLR in their court arguments because of this agreement.
The information is bought to paralegals and law students and lawyers in the legal profession during legal aid clinics which aid those who cannot afford to access legal representation. These clinics also provide paralegals and law students with research skills in understanding the historical context to the court judgments being delivered by judges and magistrates. These are provided within the Law and Justice Centres under the Judiciary of Kenya. Law students are also aided in writing dissertations using case law found in the KLR for their papers as well as understanding the historic precedence that has been laid down by judicial authorities for oral arguments in court for students who are going to represent parties in court in criminal files.
Revisions and Amendments of the Laws of Kenya
The Institutions responsible for updating the Laws of Kenya have been at the National Council for Law Reporting (NCLR) and the Attorney General’s Office. The challenge has always been for them to review an entire Act and be able to determine which parts relevant to them should remain untouched or even find an Act where a substantive provision has been replaced but the heading even if altered still remains as it previously was or even be at variance with the new provisions. This is a huge undertaking and one that the drafters have at some point shied away from in fear of being incomplete. The alternative has been to do piecemeal homoeopathic amendments to many sections without fully tackling the issues of the Act as a whole. In law , a piecemeal approach to amending the laws may be more damaging than not making amendments. This is because a piecemeal approach may lead to an amended law having inconsistencies with other neighbouring laws leading to lack of clarity and the possibility of offending legal principles or worse still of being of no legal effect. The amended provisions may also be out of place and result in the law maker having to jump from one amended provision to another which would have not been the case had the law been properly amended. Amending and updating the Laws of Kenya has also been made difficult by the practice of repealing and reactivating various provisions and Acts. Various attempts have been made over the years and every time a new mechanism has been proposed to deal with operationalizing these repealed and reactivated Acts (some of them multiple times) the matter has not been dealt with conclusively. These Acts are listed below: Going by the way the Commission’s report was drafted it appears there has been a change and amends to repeal and reactivate the law, sometimes partially where specific provisions were not included in the repeals. The idea of amending Acts to remove provisions that were no longer applicable did not take root early enough and the effect of these new provisions in the amended laws where we had repealed and reactivated other provisions had a very abrogative effect on the laws.