Ksl Pls Lesson 10

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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

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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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