A case comes before the High Court in 2008. There is a previous decision by the Court of Appeal in 1980

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A case comes before the High Court in 2008. There is a previous decision by the Court of Appeal in 1980

1. While there are complex rules regarding when courts can avoid their own past precedent,
one aspect of the doctrine of precedent is quite simple. A court is strictly bound to follow
the decisions of a court of equal to or higher than it in the hierarchy of the courts, subject
to well defined exceptions.

Using the above statement

a) Discuss how persuasive precedent works (6 marks)
b) Explain what an authoritative precedent is (6 marks)
c) Consider each of the following situations and explain how the doctrine of
precedent will apply.

(i) A case comes before the Court of Appeal in 2008. There is a previous precedent
decided by the Court of Appeal in 1971. (6marks)

(ii) A case comes before the High Court in 2008. There is a previous decision by the
Court of Appeal in 1980. (6marks)

(iii) A case comes before the Court of Appeal (Civil Division). There are two past
conflicting precedents, one from the court of Appeal Five Bench Judge and the
second from Court of Appeal Three Bench Judge decided in 1999. (6marks)
(Total 30 marks)

2. a) You have been invited to give a brief lecture to students intending to study law and
preparing to sit for an assessment test on Legal research Methods and Writing. The
subject of your lecture is to be “the determination of the law applicable to the facts of
the a case.”

Prepare your lecture focusing on the nature of the reasoning process employed by
lawyers in applying law to the facts of a case.

b) What do you consider as the sources of Law in Kenya? (20 marks)

3. The rules of statutory interpretation are an accumulation of historical principles and
presumptions. Although they are distinct principles, they sometimes have common
characteristics.
Discuss. (20 marks)

4. a) Compare and contrast the theories advanced by Proffessors Goodhart and Stone
regarding the ascertainment of the ratio decidendi of a judgement. (10 marks)

b) Discuss the significance of determining the ratio decidendi of a judgement.
(10 marks)

5. The courts can, when they are trying to find Parliamentary intention, sometimes use
intrinsic and extrinsic aids. Intrinsic aids are things inside the Act, for example, the
preamble, the long and short title. Extrinsic aids are things outside the Act, for example,
case law, Law Commission reports, previous Acts of Parliament, Hansard and
dictionaries.

Using the above illustration explain the rules of statutory interpretation illustrate using
cases. (20 marks)

 

 

 

 

 

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