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Mount Kenya University

Parklands law campus
GROUP THREE 1.1 A

BLAW 1104
LEGAL SYSTEMS AND METHODS
Ms Cynthia Njoroge

Describe the development and evolution of various legal system alongside the various
geographical and historical context that inform their conceptualization and deployment
additionally compare and contrast this diverse legal system taking notes to discuss the
rationale and extent of the exemplification through the criminal and civil trial process.
Group Members
1. Kaunda Esther Ariri - BLAW/2024/49260
2. Gift Righa - BLAW/2024/51878
3. Mohamed Salma - BLAW/2024/50276
4. Mohamed Salim - BLAW/2024/54004
5. Derick Odhiambo Juma- BLAW/2024/52709
6 .Mary Muita - BLAW/2024/54187
7 Samuel Maina – BLAW/2024/53496
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1. CIVIL LAW SYSTEM

This legal system is inspired by Roman and Germanic laws. This reference is based on the
continent of origin which is Europe. The main focus of the civil law system is written/coded
rules and principles.
By having written rules, all the citizens have access to the rules which apply to them and
which the judges must follow before making a decision or a ruling.
Currently it's the most used legal system in the world.
CIVIL LAW SYSTEM IN COUNTRIES
Europe, has civil codes. In Great Britain, Scotland has retained an uncodified form. Even
when they have civil codes, Scandinavian countries are not regarded as civil law
jurisdictions.
In North America, civil codes are found in Louisiana and Quebec.
In Central and South America, almost all countries have civil codes.
In Asia, many countries have received the civil law and have civil codes, such as Indonesia,
Japan, Kyrgyzstan, and Lebanon.
Countries of Africa that once were colonized by continental European nations have kept
many aspects of the civil law traditions. The Civil Code of Egypt has a significant influence
in Africa and the Middle East, whilst the Roman-Dutch law applied in South Africa was
never codified.
Some remnants of the civil law traditions are to be found on some Pacific islands, especially
in the French territories of New Caledonia or Tahiti.
In mixed jurisdictions, chiefly found in America, Africa, and Asia, but also in Europe, the
civil law coexists with other legal traditions such as the common law, customary law, or
Islamic law.
CIVIL LAW IN CRIMINAL TRIAL AND CIVIL TRIAL
Civil Law is generally a written constitution based on specific codes (e.g., civil code, codes
covering corporate law, administrative law, tax law and constitutional law) enshrining basic
rights and duties. This gives the courts both procedural and substantive laws to be followed
during both criminal and civil maters.
Only legislative enactments are considered binding for all. There is little scope for judge-
made law in civil, criminal and commercial courts, although in practice judges tend to follow
previous judicial decisions; constitutional and administrative courts can nullify laws and
regulations and their decisions in such cases are binding for all.
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In some civil law systems, e.g., Germany, writings of legal scholars have significant
influence on the courts decision both civil and criminal
Courts specific to the underlying codes – there are therefore usually separate constitutional
court, administrative court and civil court systems that opine on consistency of legislation and
administrative acts with and interpret that specific code;
Less freedom of contract - many provisions are implied into a contract by law and parties
cannot contract out of certain provisions in civil matters.
Civil law the judiciary only plays a passive and technical role in both civil and criminal
matters. This means they interpret facts of case based on statutes then make a ruling based on
the substantive laws.
In civil law during proceedings, the arguments are quite modest and restrictive and the
emphasis is usually on factual certainty bring about the deductive nature of civil law during
trials.
In civil law the critical stage of trial is at the investigation and examination period, bring
about all relevant evidences for a case which are present at trial and this makes the lawyers
main function to be advisorial and informative. While the judges are directors and examiners
who are appointed by merit from judicial specialists. In Kenya it's the function of the Judicial
Service Commission to appoint judges under Article 172 (1a).
Decisions during trials are usually by members of the judicial panels, in civil law and on
appeal the focus is usually on procedural and substantive proprietary of the particular case.
e.g Daniel Ngeti'ch VS AG petition 329 of 2014
The structure of civil law system has more specialized courts which deal with specific matters
e.g Employment Court in Kenya under Article 162 (2a) of the constitution.

2. COMMON LAW
The development and evolution of common law is deeply intertwined with geographical and
historical contexts in which they evolved. In this context we’ll cover the Geographical,
Historical context of the development and evolution of common law.
Historical Context
Common law has its roots in England period evolving from judicial decisions in local courts.
These periods are the Pre- Norman England and Norman Conquest.
a. Pre-Norman England ( Before 1066)
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Various local customs governed disputes. Justice was administered informally through local
assemblies.
b. Norman conquest (1066)
Imposition of Norman rule centralized authority. Royal justice started to supersede local
customs which marked transition from local forms to a more systematic approach in
jurisdiction.
Development of common law
a. Formation of royal courts (12th century)
The creation of royal courts facilitated the standardization of legal principles. Judges
travelled various regions to resolve disputes and documenting decisions, thus created
precedents that formed foundation of common law.

Stare decisis principle

The doctrine of precedents stated that future cases should be decided from prior rulings. This
principal is a fundamental framework in criminal and civil proceedings.
Geographical Context
Originated from England to various parts of the world especially former British colonies
including; US, Australia & India. Each of the colonies adapted various principles of common
law to fit there social, cultural and political context.
Civil law
Civil disputes such as contract and tort cases emerged from common law principles .Courts
relied on precedents to resolve disputes over property, inheritance and personal jury. The
court process is adversarial rather than investigatory or inquisitorial, with each side trying to
win or persuade the court to agree with its perspective.
Criminal law
Common law developed various offences, emphasizing on moral culpability of defendants
criminal cased were defined through precedents.
Early criminal trial often involve jury systems, which provide community involvement in
administering of justice.
In a criminal case, the police and prosecutor work together closely to establish their
viewpoint using the government’s resources. Defendants must rely on their own resources to
defend against the charges, either hiring an advocate or using a court-appointed one. In a civil
case, the procedures are similar; however, each side must rely on its resources to prove its
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point. In Kenya we do not have juries but in countries where a jury is present, it decides all
factual questions while the judge determines the legal issues and moderates the proceedings.
In some cases, the judge can act as a fact finder in place of a jury.

United states: Colonial influence

Upon colonization, American colonies adopted English common law. It led to development of
unique state laws.

Criminal law
The American criminal justice system incorporates criminal law for felonies which are
serious offences and define crimes.
Civil law
Civil law suits often draw from precedents to determine negligence, breach of contract and
other disputes. The federal rules of civil procedure standardize practice across federal courts.

MODERN COMMON LAW APPLICATION

Integration with statutory law
The relationship between common law and statutory law has grown more complex.
Legislature enacts laws that often modified common law principles, especially in criminal
law (e.g offences defined statute)
Globalization and international law
International law has begun to shape common law systems. Modern human rights
considerations permeate both criminal and civil processes.
This historic journey highlight’s how common law is not static system but dynamic and
continues to evolve alongside society’s needs and challenges.

3. CUSTOMARY LAW
A customary law system is a system based on long-standing traditions, customs and norms in
a particular community.
The traditions have become so ingrained in society that the courts recognize them as
enforceable rules.
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However, it is rare for customary laws to be interpreted and enforced by the government.
Today, customary laws are found in closed, isolated communities combined with common or
civil law systems, allowing them to exist alongside government systems in a hybrid system.
Development and evolution of the Customary Law
Evolution and Development of Customary Law: Customary law is based on the customs,
practices, and norms of a community, often unwritten and passed down through generations.
Its development reflects a society’s traditions and values.
Geographical context of Customary Law: Customary law systems are prevalent in Africa,
India, some parts of Asia, and among Indigenous communities in countries like Australia and
Canada. In many African countries, customary law coexists with formal legal systems.
Historical Context: Customary law evolved in societies with close-knit communities where
informal rules governed relationships, land ownership, and family matters. These rules were
often enforced by community elders or councils, rather than formal courts.
Customary law in criminal processes
 African customary law offences are not recognized by law due to the principle of
legality, but prior to 1961 such offences were recognized.
 In 1961 the Customary Laws were outlawed, during the colonial period there was a
dual system i.e the African courts and the Residents Courts (Formal courts).
 The system of African courts ended in 1968, when the Magistrates Act was enacted.
 In 1961-1968 the criminal jurisdiction was taken away from the African Courts.
 There were several African Customary Laws which overlapped with the penal code
e.g. Adultery with a married woman was an African Customary Law punishable by fine and
compensation it later become a statutory offence defined by section 13 of the ordinance of
1930.Fornication was not an offence (unless with an underage person), polygamy was
accepted, rape was also an offence as well as incest.
 These offences were later removed from the African Customary Law and brought to
the penal code. Theft, Assault, Trespass, damage to property and practicing witch craft were
also removed from the African Customary law.

Customary law in civil processes

 Customary laws in Kenya play a significant role in civil processes, and they are
recognized within the Kenyan legal system under certain circumstances.
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 Recognition under the Constitution

The Kenyan Constitution of 2010 recognizes and respects the role of customary law in
Article 2(4) as long as they are consistent with the Consistent.
- Article 159(2)(c), allows customary laws to operate alongside statutory and common
law systems in terms of alternative forms of dispute resolution; traditional dispute resolution
mechanisms
 Customary laws are applied in:
o Family Law: Customary law often governs marriage, divorce, and child
custody cases, and also used to solve disputes in regards to the same.
o Land and Property Rights: Land rights and inheritance issues, especially in
communal and family-owned land, are often governed by customary law.
o Succession and Inheritance: In many communities, succession practices
based on customary law still guide how property is distributed upon a person’s death,
especially if there is no formal will.
o In Virginia Edith Wamboi Otieno v Joash Ochieng Ougo & another (1987)
eKLR, customary laws were considered by court in determining the burial dispute.
o In Ruth Wanjiru Njoroge v Jemimah Njeri Njoroge and Another (HCCC
330 OF 2004), court recognized the rights of the widow to inherit a portion of the estate
irrespective of some customary laws which might have excluded her.
 Kenya’s judiciary recognizes customary law, especially in local courts and through
judges who are versed in community traditions. For example, in Kadhi's Courts, deal with
matters of Islamic customary law, concerning marriage, divorce, and inheritance among
Muslim communities.
 Although, there are some limitations of Customary laws such as when it comes to
Gender equality.
 Also, Customary laws are uncodified making its application inconsistent.

4. RELIGIOUS LAWS

Religious laws are a type of legal system rooted in religious doctrines and principles
Historical and Geographical contexts

a. Ancient Near East and Judaism

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Historical Context: Jewish law, or Halakha, traces its origins to the ancient Near East,
rooted in biblical texts and Talmudic interpretation. Early Jewish communities, under
diverse empires, developed a legal system that included both moral laws and societal
regulations.

Geographical Context: Mesopotamia and Ancient Egypt

b. Middle East and Islamic Sharia Law

Historical Context: Sharia law developed in the 7th century in the Arabian Peninsula
and is derived from the Quran and Hadith (sayings of the prophet Muhammad PBUH)
Islamic empires spread Sharia across diverse regions, including the Middle East,
South Asia, and North Africa, where local traditions influenced its application. Covers
both personal and community life including ritual, businesses and criminal justice.
Geography: Sharia law’s implementation varied widely based on cultural, political,
and sectarian differences. Local interpretations (fiqh) adapted Sharia to meet regional
needs, resulting in Sunni and Shia schools with differing legal opinions.
c. Cannon Law in Christianity (Western Europe)
Historical Context: Christian Canon law, rooted in the teachings of the New
Testament and early Church fathers, evolved over centuries, especially after the
Roman Empire adopted Christianity. During the Middle Ages, Canon law became a
prominent legal system across Europe. Churches established principals based on the
teachings of Jesus eventually included legal codes for ecclesiastical governance.
Geographical Context: Canon law’s influence was significant in predominantly
Christian regions, especially in medieval Western Europe, where it governed both
spiritual and secular matters in some areas.
d. Hindu and Buddhist Laws in South Asia
Historical Context: Hindu law is ancient, codified in texts like the Dharmashastra, and
later synthesized with local traditions. Buddhism, which emerged in India,
emphasized ethical guidelines (Vinaya) for monastic communities.
Geographical Context: Hindu law maintained regional variations and was flexible in
its approach, adapting to diverse communities across India. Buddhist Vinaya spread
across Asia, evolving differently in countries like Tibet, Japan, and Southeast Asia.
1. Evolution of Religious Laws
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Over time, religious law has evolved due to internal reforms, colonization,
modernization, and interaction with secular systems:
Adaptation to Modern States: Many countries have integrated religious laws with
secular laws. For example, Jewish law in Israel coexists with secular laws, while
Sharia is applied in family matters in some Islamic countries alongside secular
criminal law.

Codification and Reform: In response to colonial influences, Hindu and Islamic laws
were codified under British rule in India, setting precedents for modern applications.

Secularization and Decline: Canon law’s influence on criminal and civil matters in
Europe waned with secularization. However, it remains relevant within the Catholic
Church's internal governance.

2. Comparative Analysis in Religious Laws in Criminal and Civil Trials

Criminal trials
Jewish Law: In Halakha, criminal matters were historically adjudicated by religious
courts with a strong emphasis on evidence and due process. Capital punishment
required strict evidentiary standards, and there was a high threshold for proof. They
were guided by principles found in the Torah expanded upon in the Talmud and
practiced in the Jewish courts known as Batei
Islamic Sharia: Sharia distinguishes between offenses against God (hudud) and
against individuals (tazir). Hudud punishments are severe but require high proof
standards. Sharia courts rely on a combination of eyewitness testimony and
confession, with allowances for qisas (retributive justice) and diya (compensation). It
was a system of open courts and the rulings were expected to balance both legal
principles and social welfare of the community.
Canon Law: Canon law primarily addresses ecclesiastical crimes rather than secular
offenses. It uses a hierarchical judicial structure for offenses related to church
doctrine, clergy misconduct, and sacraments.

Hindu and Buddhist Law: Traditional Hindu law was less codified in criminal
matters, with local customs influencing judicial practices. Buddhist law, especially in
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monastic settings, focused on ethical breaches and monastic discipline, with

corrective rather than punitive measures.
Civil Trials
Jewish Law: Jewish courts address civil disputes, especially in family law,
inheritance, and contracts. Decisions are based on principles of fairness, precedent,
and Talmudic rulings.

Islamic Sharia: Civil disputes, including family law, inheritance, and contracts, are
adjudicated through Sharia principles, with a focus on reconciliation and justice.

Canon Law: Canon law governs marriage, annulments, and church property disputes,
with courts following a procedural approach that allows for appeals within the
ecclesiastical hierarchy.

Hindu and Buddhist Law: Hindu law emphasizes personal duties (dharma) in civil
disputes. Buddhist law, although not a legal system for civil matters, influences
ethical decision-making, particularly in regions where it is culturally significant.

3. Rationale and Extent of Exemplification in Criminal and Civil Processes.

Each religious law system reflects its cultural and theological rationale:

Ethical Basis: Religious laws often emphasize moral and ethical principles over
punitive measures. This is evident in Buddhist Vinaya and Jewish Halakha, where the
goal is often reformative rather than retributive.

Retributive Justice: Sharia law includes retributive justice through qisas, which allows
victims to seek recompense, reflecting a principle of direct justice.

Communal Harmony: Many religious laws emphasize reconciliation and community

well-being. Islamic and Hindu laws both incorporate mediation to resolve disputes
amicably.
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Symbolic Significance: Canon law’s rituals in marriage or annulments highlight the

theological and symbolic aspects of justice, focusing on the spiritual purity and
integrity of the sacrament.

4. MIXED LEGAL SYSTEMS

The development and evolution of mixed legal systems involve the blending of various legal
traditions within specific geographical and historical contexts.

These systems often emerge as a product of colonization, cultural exchanges,economic

developments and political reforms, which have shaped their unique structures.

 GEOGRAPHICAL CONTEXT:Clonized regions, partially in Africa,Asia and the

Carribean developed mixed legal systems due to imposed legal frame works from
European powers, such as the French,Dutch and British.
 HISTORICAL CONTEXT: Colonial adiministrations imposed a civil or common law
systems onto indigenous populations, often regarding local customs and traditional
practices.In places like South Africa the Dutch civil law system was introduced by
early settlers later modified by the British.
 RESULTING DEVELOPMENT:The legal system in these regions became a mixture
of imposed laws(such as civil or common law) with indigenous or customary
practices.The interaction between colonial and indigenous legal traditions often led to
selective adaptation and a unique legal hybrid that reflects both.
Examples of mixed systems include;

South Africa: Incorporates Roman-Dutch civil law,English common law and African
customary law, reflecting colonial influences and indegenious customs.

Israel: Includes Ottomans,British and Jewish legal principles alongside Islamic law
for its Arabs citizens, reflecting a complex cultural and religious blend.
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Differences among Major Legal Systems

Common Civil law Religious Customary

law law law
Other names Judge-made Continental Differs by Differs by
law; Anglo- law; religion; area,
American law European two ethnicity, and
law; Roman prominent tribe
law ones are
sharia
(Islamic
law) and
halakha
(Jewish
law)
Source of Case law and Statutes Religious Long-
law statutes, organized texts standing
which may in codes customs,
be organized which may be
in codes oral or
written
Degree of High; High; Wide Wide range,
judicial important to important range, from limited
independenc society that to society from very to high
e judiciary that limited to
appears to judiciary high
be appears to
independent be
of executive independen
and t of
legislature executive
and
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legislature
Judges Wide variety Career Religious Varies widely
of selection position and legal with customs
and requiring training of the area
qualification training and
standards testing;
civil
servants
Policy Due to stare Equal but Depends Depends on
making roles decisis, separate on territory and
shares power power as territory topic area;
with the and topic paramount in
individuals enforcer of area; some cases,
who come codes paramoun advisory only
before the t in some in others
court and cases,
with advisory
government only in
branches others
Examples East Africa, All Saudi Njuri Ncheke,
nigeria, European Arabia, Kaya Elders,
Australia,Ne Union Iran, AJS
w countries, United Formations
Zealand,US Quebec, Arab
(except Louisiana Emirates,
Louisiana), Israel
UK, Canada
(except
Quebec)