LAW REPORTING IN KENYA: Editorializing Caselaw - the Kenya Law Reports Editorial Process (Part I) Presented at the African Legal Information Institute, Johannesburg on July 30th 2012 By Monica Achode, HoD, Editorial Department National Council for Law Reporting - Kenya

Abstract This presentation defines and examines the justification for law reporting, the principle of stare decisis, defines precedent setting cases and outlines a guide to preparation of cases summaries

Rationale for Law Reporting The Kenyan legal system is descended from the British Common Law system. Common Law system vs Civil Law system

Common Law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action. "common law system” - a legal system that gives great precedential weight to common law on the principle that similar facts should be treated in the same way on different occasions. The body of precedent is called "common law" and it binds future decisions. where the parties disagree on the law, a common law court looks to past precedential decisions of relevant courts. If a similar dispute has been resolved in the past, the court is bound to follow the reasoning used in the prior decision

Rule of Law and stare decisis One of the fundamental doctrines of this Common Law is the doctrine of precedent/stare decisis which is captured in the Latin maxim: stare decisis et non quieta movere meaning: ‘it is best to adhere to decisions and not to disturb questions put at rest’.

intellectualized within the framework of late Roman Law . Civil law (or civilian law) is a legal system originating in Western Europe intellectualized within the framework of late Roman Law most prevalent feature is that its core principles are codified into a referable system which serves as the primary source of law. contrasted with common law systems whose intellectual framework comes from judge-made decisional law which gives precedential authority to prior court decisions on the principle of judicial precedent

It holds case law to be secondary and subordinate to statutory Conceptually, civil law proceeds from abstractions, formulates general principles, and distinguishes substantive rules from procedural rules.  It holds case law to be secondary and subordinate to statutory inquisitorial court system, unbound by precedent as opposed to the adversarial court system of the common law composed of specially trained judicial officers with a limited authority to interpret law. .

The Common Law doctrine of precedent means that cases involving similar circumstances should be decided by the application of similar principles of law. The application of this doctrine means, generally, that every court is bound to follow the decisions made by the court above it and, on the whole, appellate courts also have to follow their own decisions. A precedent is therefore a decision of a superior court, normally recorded in a law report, used as an authority for reaching the same decision in a subsequent case. .

The Supreme Court is the highest court in Kenya and its decisions are binding on the Court of Appeal, the High Court, the Magistrate’s Courts as well as specialized courts and tribunals. The Supreme Court would normally also follow its own decisions unless it can overrule them so that they are set aside and cease to have the force of precedent. The decisions of the Court of Appeal are binding on the High Court and the Magistrates’ Courts while those of the High Court are binding on the Magistrate’s Courts. The decisions of the Magistrates’ Courts do not in themselves create any binding precedent for any court.

A superior court may reverse its own decision A superior court may overrule the decision of a lower court A superior court may reverse its own decision A lower court may distinguish the decision of a higher court A lower court may decline to follow a per incuriam decision of a superior court persuasive authority of foreign precedent

power to overrule a natural attribute of the hierarchy of courts

A superior court may reverse its own decision the Supreme Court is not bound by its own decisions It is a power that has to be exercised properly and along established lines There has to be a strong reason for reversing Still the reversing decision has to be in line with the precedent of a superior court Usually the reversing bench is constituted with more judges than the bench in the decision being reversed

A lower or higher court may distinguish the decision of a higher court or its own decision to distinguish is to contrast the facts of the case at hand with those of a case that establishes a precedent and to determine that the legal reasoning of the previous case does not apply to the case at hand upon distinguishing, the application of the precedent is limited or excluded altogether

A lower court may decline to follow a per incuriam decision of a superior court - ‘through lack of care’ refers to a decision of a court which has been decided without reference to a provision of an Act/statute or to an earlier decision which would have been relevant it does not have to be followed as a precedent Morelle Ltd v. Wakeling [1955] 1 All ER 708, [1955] 2 QB 379

If, however, the court finds that the current dispute is fundamentally distinct from all previous cases (called a "matter of first impression"), judges have the authority and duty to make law by creating precedent. Thereafter, the new decision becomes precedent, and will bind future courts.

Persuasive Precedent A precedent or other legal writing that is related to the case at hand but is not binding on the court However, persuasive authority may guide the judge in making the decision in the case at hand. Persuasive precedent may come from many sources - lower courts, "horizontal" courts, foreign courts, statements made in treatises, law reviews, journals

Advantages of the Doctrine of Precedent: ensures certainty in the law. People are able to order their affairs and come to settlements with a certain amount of confidence when the outcome of litigation can be predicted by referring to previous decisions. judicial impartiality and transparency. Generally, a judge is bound to follow the law enunciated in a previous case unless he or she can overrule or distinguish it. offers opportunities for the develop’t of the law and evolution of jurisprudence not provided by Parliament. Courts can more quickly lay down new principles, or extend old principles, to meet novel circumstances.

Operating the Doctrine of Precedent: It is not enough to espouse a doctrine – a support structure has to be built around it Two fundamental pillars of support: The form and structure of Judicial opinions The publication of law reports

Two fundamental pillars of support: Operating the Doctrine of Precedent: Two fundamental pillars of support: a. The form and structure of Judicial opinions the exercise of the judicial function of decision making. Demonstrably show the exercise of legal reasoning guided by established principles of statute and case law ratio decidendi –The rationale for the decision – legal, moral, political and social principles used to compose the rationale of a judicial opinion obiter dicta – statements not forming part of the ruling, said in passing

law reports being preserved records of precedent Operating the Doctrine of Precedent: Two fundamental pillars of support: b. The publication of law reports a system of law reporting – monitoring, capturing, analyzing and reporting on precedent-setting judicial opinions law reports being preserved records of precedent law reporting therefore a well-established tradition in the commonwealth law reporting almost invariably carried out by institutions/departments specially established for that purpose

All England Law Reports Weekly Law Reports Operating the Doctrine of Precedent: Kenya Law Reports United States Reports All England Law Reports Weekly Law Reports

The National Council for Law Reporting

a state corporation in the Judiciary of Kenya. About the National Council for Law Reporting a state corporation in the Judiciary of Kenya. established by the National Council for Law Reporting Act, Act No. 11 of 1994 The mandate of the Council is to: publish the Kenya Law Reports, which are the official law reports of the Republic of Kenya revise, consolidate and publish the Laws of Kenya;

“Transforming legal information into public knowledge”. Vision “To be the premier resource institution in Africa providing reliable and accessible legal information to the public” Mission “To provide access to public legal information in order to aid the administration of and access to justice, the knowledge and practice of law and the development of jurisprudence”. Slogan “Transforming legal information into public knowledge”.

The Editorial Department Vision To establish the National Council for Law Reporting as the leading publisher of official law reports in Africa and beyond. Mission To timeously collect, analyze and provide affordable access to accurate and relevant case law and other legal information in order to aid the administration of justice, the practice and teaching of the law and the development of Kenya’s jurisprudence.

Our Products… KLR Volumes Specialized editions KL Review Journal KLR Monthly Bench Bulletin Case search facility Cause list Weekly Newsletter Collaboration with local dailies Collaboration with other legal magazines

PRECEDENT SETTING CASES These are judicial opinions which make a material contribution to Kenyan or international jurisprudence. The opinions tend to make new law usually by dealing with a novel situation or extending the application of an existing principle of law or tending to materially settle a point over which the law has been doubtful.

PRECEDENT SETTING CASES Such cases will include but will not be limited to: Those interpreting the language of legislation; Those in which a judge applies a principle which although well established, has not been applied for many years and may be regarded as obsolete; Those in which the court sets out deliberately to clarify the law for the benefit of lower courts and the teaching of law; Those in which a judge restates or abrogates an existing principle of law or restates the principle in terms of a particular applicability to local jurisdiction;

Those where a court states its review on a point of practice or procedure; Occasional judgments interpreting clauses found in contracts, wills, articles, and other documents; Occasional judgments indicating the measure of awards being with regard to quantum of damages for personal injury, death, defamation, etc; Appeals from decisions of lower courts which had been previously reported; Judgments declaring any legislation or part of it to be unconstitutional or otherwise invalid. Judgments delivered in cases raising a matter of public interest or those which are for some other reason, are particularly instructive

Preparation of Case Summaries Each report of a judicial opinion must show the following: the presiding judicial officer/s; the registry reference number for the case; the parties; the nature of the pleadings; the essential facts; the points contended for by counsel; the grounds on which the opinion is based; the judgment, decree, or order actually pronounced; the date of the judgment, decree or order; the advocates/attorneys appearing for the parties; The name of the reporter.

A summary should inform the reader at a glance of all the important matters raised by the case so that the reader can see whether the case is deserving of further attention for the purposes of the research in hand; the reader should not be obliged to read the judgment in order to make an assessment.

Catchwords have two basic purposes: GENERAL GUIDELINES FOR CASE SUMMARRIES Catchwords Definition: subject index or catchwords are the key issues of the case, expressed in index style, becoming more specific. They are prepared by staff with training and experience in indexing. Catchwords have two basic purposes: They serve as a quick précis of the essential law and facts involved in the case reported; and They serve ultimately as a subject-matter index for the case

GENERAL GUIDELINES FOR CASE SUMMARRIES Catchwords

SUBJECT INDEX/CASE NOTES/HEADNOTES GENERAL GUIDELINES FOR CASE SUMMARRIES Catchwords & Summary SUBJECT INDEX/CASE NOTES/HEADNOTES SUMMARY OF FACTS

HOLDINGS/RATIO DECIDENDI GENERAL GUIDELINES FOR CASE SUMMARRIES Catchwords & Summary HOLDINGS/RATIO DECIDENDI

In instances where a case deals with two or more aspects of law, whether under the same general heading or not, it is usually necessary to have a separate set of catchwords for each aspect. There should be a joiner of issues, in a manner of speaking, between the catchwords, the facts and the holdings. This means that the issues of law isolated in the facts should all be answered in the holdings and also captured in the catchwords. No issue should be left suspended by not being covered in all the three segments of a law report.

GENERAL GUIDELINES FOR CASE SUMMARRIES Catchwords & Summary Criminal law - defilement of a girl under the age of sixteen years - second appeal against conviction and sentence of 30 years imprisonment - second appeal confined to matters of fact - sentencing - Penal Code section 145(1) - Criminal Procedure Code section 361(1) Criminal Practice and Procedure - sentencing - offence of defilement -  offender liable to sentence of life imprisonment - consideration of principles of sentencing - court inclined not to so fundamentally depart from the principles of sentencing obtaining at the time that the offence was committed - whether a sentence of imprisonment for 30 years in substitution of a sentence of imprisonment for life should be reduced Criminal Practice and Procedure - arrest and detention - rights of an arrested person - right to be arraigned in court within a reasonable time - duty of the police to give an explanation for holding a person in custody beyond the period provided in the Constitution section 72(5) - person arrested on suspicion of the offence of defilement - computation of time - when time begins to run - offence committed on a Friday and suspect arrested on the same day - weekend days ie Saturday and Sunday not to be considered for the purposes of reckoning the most practicable time the suspect should have been arraigned in court.

Tense Summaries should be written in the past tense. It follows from this that phrases such as ‘the present case’ and words such as ‘this’, ‘these’, ‘now’, etc should not be used in summaries. The fact that any exposition by the court of what the law is will relate equally in the future is immaterial from the point of view of the tense used. Similar considerations apply to statements relating to statutory provisions (the Summary will say for example: ‘section 46 provided…’ notwithstanding that section 46 continues to be in full force and effect).

Holdings The holdings set out in a report may be of a single limb or of a number of limbs. Where there are a number of limbs, it may be that there are a number of separate matters on which the court has had to rule, or that the court has reached its final conclusion for a number of different (and perhaps alternative) reasons or because the judges who comprise the court have reached their conclusions by different routes. Whether a holding should be of the single-limb or multi-limb variety is in the discretion of the reporter, having regard to the nature of the case reported.

Holdings

Holdings The practical result of the court’s decision must always appear in the holding of a narrative report, i.e. the holding must always show, for example, that the plaintiff was entitled to damages, or that the application would be dismissed, or that the appeal would be allowed, or that the declaration sought would be granted, or that the court would declare that….etc.

In preparing a summary for a case involving more than one judge and where each member of the court delivered a separate opinion, discretion should be applied in ensuring that the holdings accurately reflect the issues on which all the judges were in agreement. Where there is the application of different strands of legal reasoning, the opinion of each judge should be respected and depicted. When giving the holding of one judge which does not materially agree with the holding of a fellow judge in such a judgment, it is appropriate to attribute the holdings e.g., “Per Denning J…”

Dicta Important statements by the judge (which may not be obiter) are placed after the holding (where there is only one) or after all the holdings (where more than one). Although the question of what is appropriate to be included in such dicta is outside the scope of these guidelines, they will usually consist of points of law which do not require to be decided for the purposes of the case before the court (or which cannot be decided by the court for one reason or another) or points of practice which the court wishes to bring to the attention of the practitioners. Dicta are written in the present tense and must not refer to the parties or to particular facts of the case being reported.

Dissents Only the fact of a dissent from the reasoning of the majority (or of failure to concur with or doubts about that reasoning) may be set out in the Summary of Issues. Although dicta may be set out from dissenting judgments, the Summary of Issues must not contain, either in the Summary or in dicta following, anything which is contrary to what was decided by the majority (it is for legal journals and other legal commentaries and not law reports to state that only one judge got it right and that the other four all got it wrong).

Orbiter Dicta Dissent

ANATOMY OF A JUDICIAL DECISION

ANATOMY OF A JUDICIAL DECISION

ANATOMY OF A JUDICIAL DECISION

Law Reform Judicial opinions are an important barometer for evaluating the constitutionality, propriety, effectiveness, redundancy, applicability and utility of statutory legislation. Judicial pronouncements relating to one or more aspects of constitutional and statutory law that are in need of reform are an important driver of the law reform process. As such, it is the duty of a law reporter, during the course of preparing case summaries, to identify such pronouncements and to bring them to the special attention of both the Attorney General and the Law Reform Commission.

LAW REFORM

LAW REFORM

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