Though not listed in the Judicature Act, international law is a source of Kenyan law. The government is party to a number of international legal instruments and Kenyans can use these as an additional tool
for the advancement of their rights. However, it only becomes enforceable in Kenya after they have been incorporated into our domestic legal system by implementing legislation.
Treaties are formal written agreements between states or international organizations. Treaties can have various names, such as conventions, pacts, accords, or agreements.
Rules / principles / cannons of interpretation
The Literal Rule
Under the literal rule (also: the ordinary meaning rule; the plain meaning rule), it is the task of the court to give a statute’s words their literal meaning regardless of whether the result is sensible or not. In a famous judgment, Lord Diplock in Duport Steel vs Sirs (1980) said “The courts may sometimes be willing to apply this rule despite the manifest absurdity that may result from the outcome of its application.” The literal rule is often applied by orthodox judges who believe that their constitutional role is limited to applying laws as enacted by Parliament. Such judges are wary of being seen to create law, a role which they see as being strictly limited to the elected legislative branch of government. In determining the intention of the legislature in passing a particular statute, this approach restricts a judge to the so called black letter of the law. The literal rule has been the dominant approach taken for over 100 years.
The Golden Rule
The golden rule (also: the British rule) is an exception to the literal rule and will be used where the literal rule produces the result where Parliament’s intention would be circumvented rather than applied. In Grey vs Pealson (1857), Lord Wensleygale said: “The literal rule should be used first, but if it results in absurdity, the grammatical and ordinary sense of the words may be modified, so as to avoid absurdity and inconsistency, but no further.”
It is applied by courts to avoid arriving at an absurd or repugnant or unreasonable decision under the literal rule. Under this rule, a court is free to vary or modify the literal meaning of a word, phrase or sentence as to get rid of any absurdity. The rule was explained in Becke-vs-Smith (1836) as well as in Grey-vs-Pearson and was applied in R-vs-Allen to interpret the provision of the Offences against the Person Act (1861). It was also applied in Independence Automatic Sales Co Ltd –vs- Knowles and Foster to interpret the word ‘book debt’ used in Section 95 of the Companies Act of 1948. The court interpreted it to mean all debts of the company which ought to have been entered in the books in the ordinary course of business whether or not they were so entered
The Mischief Rule
The final rule of statutory interpretation is the mischief rule, under which a judge attempts to determine the legislator’s intention; what is the “mischief and defect” that the statute in question has set out to remedy, and what ruling would effectively implement this remedy? The classic statement of the mischief rule is that given by the Barons of the Court of Exchequer in Heydon’s Case (1854): “…for the sure and true interpretation of all statutes in general, four things are to be discerned and considered:
- What was the common law before the making of the Act?
- What was the mischief and defect for which the common law did not provide?
- What remedy the Parliament hath resolved and appointed to cure the disease of the Commonwealth?
- The true reason of the remedy; and then the office of all the judge is always to make such construction or shall suppress subtle inventions and evasions for continuance of the mischief and pro private commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico.