The Common Law, Judges' Law
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Date
2014
Authors
Ojwang', Jackton B.
Journal Title
Journal ISSN
Volume Title
Publisher
Strathmore University Press
Abstract
Setting out from a background of scholarship evolved over a period of
decades, I joined the High Court Bench in October 2003, with the enthusiasm
to match the law as learnt, to the reality of dispute settlement.
First assigned duty in the Civil Division at the principal station, and thereafter
continually adjudicating civil disputes, I formed the impression, especially
after serving for more than three years in the Criminal Division and after
experiencing the entire range of justiciable causes, that civil cases, offered the
widest scope for the development of the typical legal concept, and for the
formulation of novel concepts of jurisprudence. The reason is that, unlike in
criminal or cognate matters, which on constitutional or historical grounds
were bounded by formal law, the civil domain rested on private grievance, and
accorded the judge considerable liberty in the application of principle an d in
law-making.
At the same time I gained the perception , with in the framework of civil
litigation, that the law relating to property was by far the most tested sphere of
dispute settlement. By no means surprising, in view of the constrained pace of
growth of the national economy, attending upon a rapid pace of population
growth, such as obtains in most African countries. The basic endowment of
nature, in the form of land, and land-based resources and activities, lies at the
core of social tensions, and the resultant urgency of dispute settlement; and
these, thus, constitute the larger part of the incidence of civil litigation.
Such disputes do not, in most cases, find anything akin to solution-templates
in the form of enacted law. And the common law tradition has come
in handy - with its considerable scope for judicial law-making. This scenario
conforms to reality in East Africa, which had the legacy of the common
law, coming both formally through legislative prescription, and informally
through the agency of judicial officers of Commonwealth origin, as well as
through a system of legal education and training greatly influenced by the
Commonwealth experience.The classic depict ion of the place of judicial creativity, even when the
subject-matter is govern ed by enacted law, is that by Lord Denning:
"It would certainly save the judges trouble if Acts of Parliament were drafted with
Divine prescience and perfect clarity. In the absence of it...a judge...must set to work
on the constructive task of finding the intention of Parliament, and he must do this
not only from the language of the statute but also from a consideration of the social
conditions which have given rise to it , and of the mischief which it was passed to
remedy, and then he must implement the written word so as to give 'forces of life'
to the intention of the legislature....» t
In the same way, there was an unlimited scope for the Kenyan judge to
interpret the law, breathe life into it and, for all practical purposes, make law.
It is the clear significance of landed property in the incidence of litigation
, that led to the choice of this sphere as the forum for examining evolving
judicial practice. This work is a depiction of the judge's law-creative role, in
the common law tradition.
The judge's context of work is, however, not exactly the same in East
Africa as in England - the cradle of the common law tradition. In most
countries of Africa, the fundamental principles of law are laid out in a written
Constitution, that is binding on the courts and all public agencies. It is, thus,
a matter of professional interest, how the superior courts have performed the
common-law role, in the context of the Constitution as the basic norm.
In this work, it is the sphere of property law that has been adopted as the
medium for examining the mode of discharge of the common law function,
in the context of the principles elaborated in the Constitution.
Description
Book
Keywords
Law, Common Law, Judges' Law, Kenya, Land, Environment