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Klaw 109: Legal Systems &Amp; Methods Question Paper
Klaw 109: Legal Systems &Amp; Methods
Course:Bachelor Of Laws (Llb)
Institution: Kabarak University question papers
Exam Year:2011
KABARAK UNIVERSITY
UNIVERSITY EXAMINATIONS
2011 ACADEMIC YEAR
FOR THE DEGREE OF BACHELOR OF LAWS
KLAW 109: LEGAL SYSTEMS
DAY: WEDNESDAY DATE: 07/12/2011
TIME: 2.00 – 4.00 P.M. STREAM: Y1S2
INSTRUCTIONS
Answer question 1 (30 marks) and any two other questions (20 marks each). Spend the first
15 minutes carefully reading all questions, selecting and planning your answers. Do not
write on any paper other than provided answer papers. Request for extra writing sheets if
required.
Q 1.
On one hand:
“I believe customary law qua positive law is dying; it is in fact dead in a lot of
substantive areas…I believe customary law now belongs to social history, and that those
principles of it as reflect the way of contemporary Kenyans belong to Sociology and
Anthropology…” H.W.O. Okoth-Ogendo, “A Death of Customary Law” mimeographed
contribution to a debate on whether or not customary law should be included in the LL.B.
syllabus (1979)
On the other hand:
“I do not believe that the development of a common law of Kenya is something which
parliament is competent to undertake. The procedural hurdle which parliament must clear
however relates to section 3 of the Judicature Act. I am convinced that this system should
now be amended as follows:
(i) All references to ‘common law of England...etc.’ should be deleted.
(ii) A carefully drafted clause empowering the court to develop a ‘common law of
Kenya’ should replace the common law of England clause, and
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(iii) The provision with respect to customary law, without the repugnancy clause
should remain.” H.W.O. Okoth Ogendo “Customary Law in the Kenya Legal
System and Old debate Revisited” in J.B. Ojwang and J.N. Kanyua Mugambi
(eds), The S.M. Otieno Case: Death and Burial in Modern Kenya (1989) p 145.
(a) With reference to decided cases, explain whether, and if so then to what extent, English law
is received into Kenya. (10 marks)
(b) Briefly discuss the doctrine of precedent. (10 marks)
(c) (i) Why do you think Okoth-Ogendo proclaimed the death of customary law in Kenya?
(5 marks)
(ii) How can you explain his subsequent change in attitude towards African customary law?
(5 marks)
Q 2. Contested traditions in academic law classify legal systems at various levels including
geographically and historically. William Twining in General Jurisprudence (2009) follows both
doctrinal and sociological concepts of law. He concludes that:
“In order to understand law we need to view it both doctrinally and empirically and that
conceiving it as a form of institutionalized social practice combines both elements.”
(a) Define legal and cultural relativism and distinguish legal centralism from legal pluralism.
(5 marks)
(ii) Gordon Woodman (2003) argues that “there can be no map of law.” Classify historical legal
families using concepts of civilizations, cultures and traditions as an improvement on
geographical mapping to distinguish the characteristics of a common law system from the other
major legal systems of the world? (5 marks)
(b) With the aid of illustrations, explain how Aristole’s tradition on appropriate rules has been
superseded by 19th Century Enlightenment Jurists and 20th Century philosophers to contribute to
clarify the distinction behind legislator-made and judge-made law. (10 marks)
Q 3. (a) Explain how various schools of jurisprudence–natural lawyers, the sociological school
of law, legal realists and legal positivists–identify a valid rule in a legal system? (10 marks)
(b) Critically discuss what is meant by the phrase “the rule of law”? (10 marks)
Q 4. (a) (i) Distinguish between “parliamentary sovereignty” and “separation of powers” and
briefly outline the function of legislation. (5 marks)
(ii) How is a statute made and how is its form interpreted using intrinsic and extrinsic aids?
(5 marks)
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(b) (i) Identify and discuss various presumptions invoked by common law judges (as distinct
from intrinsic and extrinsic aids [in a(i) above] and/or the traditional rules for statutory
construction [in b(ii)] below). (5 marks)
(ii) Explain four canons of construction invented by judges to construe legislation. (5 marks)
Q 5. EITHER (a) or both (b) (i) and (ii):
(a) “In Kenya, the significance of the right to legal aid has not been adequately or fully
appreciated by the legal profession, the government, the courts or the parliament which
has not established a legal aid scheme in the country. There is need to sensitize all the
branches of government as to the urgency of the need. Dr Gibson Kamau Kuria, “The
Right to Legal Aid” in Smokin Wanjala (ed) Access to Justice in Kenya (Nairobi, Kituo
Cha Sheria, 2004) pp 41-75 at p 74.
Critically discuss the extent to which the above statement may be valid or not. (20 marks)
OR:
(b) “The legal profession in Kenya has over the past found itself bombarded by many an
epithet hardly complementary of lawyers. The reason for this is in part due to the fact that
a lawyer unlike any other professional in continually under public (scrutiny) and always
brought into four dimensional focus.” Tom O. Ojienda, The Legal Profession in 2015:
Rethinking the Challenges, Opportunities and Threats (Law Society of Kenya Journal,
2005) p 37.
In light of the above statement critically discuss:
(i) What legal and administrative structures are established to provide for and regulate legal
education in Kenya both at university and professionally? (5 marks) State the extent to which
the undergraduate law curriculum and its teaching are relevant to the aspirations of advocacy in a
developing country and why perceptions of justice may differ from delivery of law. (5 marks)
AND
(ii) What is the mandate of the Law Society of Kenya and to what extent and in what manner has
the LSK fulfilled its mandate from its colonial origins until today? (5 marks) Discuss the extent
to which any government initiatives regulate the legal profession and suggest measures for
reform. (5 marks)
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