ksl pls lesson 10
TRANSCRIPT
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LESSON CONTENT
1. The meaning of the doctrine
2. The history of the doctrine
3. The rationale for the doctrine4. The application of the doctrine
5. Advantages of the doctrine
6. Disadvantages of the doctrine
7. Importance of law reporting
8. Citation of cases and statutes
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Lesson goal
To enable you understand the role of judicial
decisions as an important source of law
To enable you appreciate the use of thedoctrine of precedent in the application and
development of
Case law
Statute law
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LESON OBJECTIVES
At the end of this lesson you should be able to1. State the meaning of the doctrine of precedent
and stare decisis
2. Narrate history of the doctrine3. Explain rationale for the doctrine
4. Describe application of the doctrine
5. State the advantages of the doctrine
6. State the disadvantages of the doctrine7. Explain importance of law reporting to the
application of the doctrine
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The meaning of the doctrine
Civil suits are based on some identifiable legalwrong- a cause of action
Criminal case are based on some identifiable
breach of some penal statute a charge In making judicial decisions, courts apply the law
to factual situations
In the process they enunciate some legalprinciple which applies to the specific casebefore them and to some analogous factsituations
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The meaning of the doctrine
In most legal systems these decisions of the
courts play an important role in the
administration and adaptation of the law
It is usually asserted that they play a uniquely
important role in the common law system, a
role summarized in the rubrics doctrine of
precedent and stare decisis. (Harvey 1975)
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The meaning of the doctrine
stare decisis et non Quieta Moverestand by
what has been decided and do not unsettle
what has been established
Stare decisismeans that a court is bound to
follow the previous decisions of a court of
higher or (generally) coordinate status if the
facts of the previous case are substantially
similar to the facts of the subsequent case
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History of the doctrine
After the Norman conquest (1066) English
monarchs sent travelling judges round the
country to administer royal justice
The judges mainly applied customs which varied
from place to place
Eventually the judges began to follow previous
decisions and the rules gradually becameconsistent
The rules came to be known as the common law
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History of the doctrine
It is not clear what the legal basis for theapplicability of the doctrine in Kenya is
During the colonial period colonial judges applied
the doctrine in the same way as theircounterparts back in England without anyquestions as to its legal basis
Thanks to our colonial heritage this doctrine was
exported to and imported into Kenya by thecolonial judges and is unquestionably applied bythe courts of this country
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History of the doctrine
There are several possible explanations for of itsapplicability in Kenya
1. The general reception clause, the 1897 EAOIC
imported it together with the common law. I.e. wereceived both the substantive and proceduralaspects of the common law
2. The jurisdiction of the High court and its practice andprocedure were made analogous to the jurisdiction,practice and procedure Of Her Majesty's Court ofJustice in England. Accordingly the local courts mustapply the doctrine Like Her Majestys court would do
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Rationale
It comports with common sense
The point of departure in problem solution is to
see if there exists examples where the problem
or similar problems have been tackled before
There is a strong case for sticking to tried tested
and proven solutions
The previous example is a good guide to thesolution of the instant problem and will probably
be followed
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Application of the doctrine
Harvey (1975 ) asks the following questions
1. What is the authoritative element of the previous
courts decision that binds future courts?
2. What are the techniques for extracting that
authoritative element?
3. What are the courts from whose decisions the
authoritative elements ban be extracted?
4. What are the justifications for adherence to earlier
decisions and do these justifications respond to the
predominant needs of the country ?
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Ratio decidendi
That part of the decision which is
binding orpersuasive.
1.
It is the reason for the decision, or2. The principle underlying the decision,
or
3. That legal proposition which the court
has applied to the material facts of thecase in order to arrive at its decision.
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Illustration- Donoghue v
Stevenson [1932] AC 52
A famous House of Lords case in the area of thecommon law of tort.
It is perhaps most well known for the statementof Lord Atkin regarding the existence of a duty ofcare in Anglo-Australian law.
The reasoning in this case has taken root in manycountries.
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Illustration- Donoghue v
Stevenson [1932] AC 52The Facts
The appellant, May Donoghue, claimed
that on 26 August 1928 she drank some
of the contents of a bottle of ginger -
beer, manufactured by the respondent,
which a friend had bought for her at acafe in Paisley, Scotland.
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Illustration- Donoghue v Stevenson
[1932] AC 52 As a result Mrs Donoghue alleged that
she suffered from shock and severe
gastroenteritis.
What could Mrs Donoghue do?
What remedies in lawwere available toher?
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Illustration- Donoghue v
Stevenson [1932] AC 52Remedies in Contract or Tort Law?
Given that her friend had bought the
drink, there was no contract betweenMrs Donoghue and the retailer.
The friend who did have a contract withthe retailer was unaffected by the eventand could not seek damages on herbehalf.
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Illustration- Donoghue v
Stevenson [1932] AC 52 Donoghue instituted proceedings against
the manufacturer of the ginger-beer(Stevenson).
Liability arose because the manufacturer(respondent) owed the consumer(appellant) a duty to exercise reasonable
care (Lord Atkins neighbour principle).
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Illustration- Donoghue v
Stevenson [1932] AC 52A manufacturer of products, which he sells in
such a form as to show that he intends them to
reach the ultimate consumer in the form in which
they left him with no reasonable possibility ofintermediate examination, and with the
knowledge that the absence of reasonable care
in the preparation or putting up of the products
will result in an injury to the consumers life orproperty, owes a duty to the consumer to take
that reasonable care.
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Illustration- Donoghue v Stevenson
[1932] AC 52Neighbour principle
That rule that you are to love your neighbour
becomes, in law, you must not injure your neighbour,
and the lawyers question, Who is my neighbour?receives a restricted reply. You must take reasonable
care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your
neighbour. Who, in law, is my neighbour? The answer
seems to be persons who are so closely anddirectly affected by my act that I ought reasonably to
have them in contemplation as being so affected
when I am directing my mind to the acts or omissions
which are called in question.03/08/2011 26CHARLES B G OUMA LLB MLB ADJUNCT
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Different types of precedent
Original precedent
Binding precedent
Persuasive precedent
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Original Precedent
If a point of law has never been decided before, then
whatever the judge decides will form a new
precedent for later cases to follow.
Donoghue v Stephenson (1932). As there are nopast cases for the judge to base his decision on, he is
likely to look at cases that are closest in principal and
he may decide to use similar reasoning.
This way of arriving at a judgment is known as
reasoning by analogy .
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Binding Precedent
This is a precedent from an earlier case, which
must be followed even if the judge in the later
case does not agree with the legal reasoning.
A binding precedent is only created when the
facts of the second case are sufficiently similar
to the original case and the decisions was
made by a court which is senior too, or insome cases the same level as, the court
hearing the later case
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Persuasive Precedent
These are not binding on the court, however a
judge may consider such a precedent and
decide that it is the correct principal to follow.
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Operation of the Doctrine of Precedent
Every court is bound by a court above it in thehierarchy.
In general, appellate (appeal) courts are bound by
their own decisions. (But there are exceptions to this
rule, )
The other thing, which is essential, is that lower
courts know all the legal reasoning behind decisions
of the higher courts. They can only do this if thosereasons are properly reported. All decisions from the
High Court upwards are properly reported through
the system of Law Reporting.
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Some more common terms
1. Distinguishing
2. Overruling
3. Reversing4. Following
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Distinguishing.
If a judge decides that the material facts of the
case in front of him are sufficiently different
from the material facts of the case containing
the precedent then he is not bound by the
precedent
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Over-ruling.
This is where a court in a later case states that
the legal rule decided in an earlier case has
been wrongly decided.
This would normally happen when a court
higher in the hierarchy over-rules a decision
made by a lower court in a previous case.
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Reversing.
This is where a court higher up the hierarchy
over turns the decision of a lower court in the
same case. E.g. the Court of Appeal reverses a
decision of the High Court
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Following.
Where a higher court agrees with the decision
of the later court.
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Operation of the principle in
England
House of Lords( Now Supreme Court)
1894 LCC vs LST always bound by its own
decisions 1966 Practice statement-may depart from its
previous decisions under very limited and
exceptional circumstances
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en
Court of appeal
Always bound by the decisions of the house of
lords
Usually bound by its previous decisions butmay depart therefrom under certain
circumstances
Decisions of the Judicial Committee of thePrivy Council are of great persuasive value but
not binding
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High Court
Usually just triers of fact
Decisions usually unreported Do not create precedent
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Eastern African Court of Appeal the
predecessor to our court of appeal
Used to be bound by the decisions of the JCPC Upon attainment of Republican status, no
longer bound
Not bound by its own decisions. May depart in
rare and exceptional circumstances
That is the position of the present court of
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High Court
Bound by the decisions of the court of appeal
Not bound by decisions of other High Courtsbut will treat them as persuasive
Not bound by decisions from the
commonwealth and other countries
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Subordinate courts
Bound by decisions of the High Court or court
of appeal
If there is a conflict between a high court
decision and a decision of the court of appeal
the decision of the court of appeal will be
followed
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Advantages of the the doctrine
It achieves consistency
It promotes certainty and predictability
It introduces objectivity It is a scientific methodology for problem
solving- it follows generally accepted, tried
tested and proven predetermined rules and
procedures
It leads to decision making by law not by men
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END OF PRESENTATION
ANY QUESTIONS?
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