Monica_Achode_Editorial Processes-1

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
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’.
• 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
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
•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.
superior court may overrule the
decision of a lower court
• A superior court may reverse its own
• 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
•A superior court may reverse its own decision
• the Supreme Court is not bound by its own
• 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
• 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
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
• The publication of law reports
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
• obiter dicta – statements not forming part of
the ruling, said in passing
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
• law reporting therefore a well-established
tradition in the commonwealth
• law reporting almost invariably carried out
established for that purpose
Operating the Doctrine of Precedent:
• Kenya Law Reports
• United States Reports
• All England Law Reports
• Weekly Law Reports
The National Council for Law Reporting
About the National Council for Law Reporting
• a state corporation in the Judiciary of
• 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;
“To be the premier resource institution in Africa
providing reliable and accessible legal information
to the public”
“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”.
“Transforming legal information into public
The Editorial Department
To establish the National Council for Law Reporting as the leading
publisher of official law reports in Africa and beyond.
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
Our Products…
1. KLR Volumes
2. Specialized editions
3. KL Review Journal
4. KLR Monthly
5. Bench Bulletin
6. Case search facility
7. Cause list
8. Weekly Newsletter
9. Collaboration with local dailies
10.Collaboration with other legal magazines
These are judicial opinions which make a
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.
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.
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
Catchwords & Summary
Catchwords & Summary
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.
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.
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).
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 singlelimb or multi-limb variety is in the discretion of the
reporter, having regard to the nature of the case reported.
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
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
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
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
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.
Any Questions / Comments?
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