Comparison of Kenya to India Flashcards
why did english law develop
to protect protect the power of individuals and limit the power of the state
Strenghts of common law
evolutionary nature
why is evolutionary an advantage
system relies on case law and it can evolve ov er time with changes in political environment. This is advantageous for transplantation into other contexts as case law will develop in wat that it needs to , to the needs of the society
common law= adversial system?
parties in a dispute are pitted against one another in a n oral context with expectation that the competition will reveal the truth
What law did Kenya and India decide to follow
Western legal system as they trained indigenous lawyers in the law of the metropole during the colonial era
Why did they choose to follow the law of the metropole
It was familiar and atleast there were some trained personnel in the country with experience in that form of law
when was english common law established in india?
1727
which courts were established
Madras, Bombay and Bengal
why were they instituted
to correct some of the injujstices of the company rule and to adjudicate disputes among British subjects in these settlements
why was common law at first transplanted in a rigid form in india
this is as a result of its limited application and the lack of will on the part of the British company whose concern was not to develop dxeeply rooted judicial institutions as they were with keeping order and gaining control
what is the evidence of adaptation of common law in india
Indian advocates and pleaders in courts to consider issues of Islamic or Hindu
How did common law continue to be transplanted
There were compiled books of indian laws that totalled 500 pages. Moreover, there was an active engagement of indians in the legal profession who were able to bring cases. No positions were held solely for British officials as an Indian with qualifications could aspire a position in the colonial service
When did India gain independence and when was the constitution formed and on what basis
India gained independence in 1947 and the constitution was enshrined in common law
What is the post-colonial indian legal development
Since independence, india has changed its judicial system ,within the bounds of common law which makes it different from common law practiced in England. This shows the evolutionary nature of common law .
What changes were made in the judicial system?
The jury system was eliminated in India in 1960 as a eresult of the Nanavati case in which a Parsu Navy commander murdered a Sindhi buisness man who had a habit of seducing military wives. A jury acquitted Commander Nanavati because of public sympathy inspite of overwhelming evidence and a confession
What shows the success of transplantation and adaptation of common law in India
Common law was first introduces in conquered areas in India , 223 years later, it is the foundation of the independent state
The transplantation began with a body of law rigidly and inconsistently applied by English judges and ended up with a body suited to its context
Moreover,midcolonial period, common law was being used by indian lawyers
Kenya
First British contact came later than India. Kenya used Indian procedure and Indian codes during the years of colonial control
What were the difficulties in transplanting English law in Africa
British judges knew little of the local context and applied the law in a rigid way more suitable for criminal proceedings than civil proceedings.
It was also used to control native populations
What happened at independence
Kenya embraced the common law system
Were Kenyans trained to be lawyers at the time
Yes, atleast a few Kenyans were serving at the bar and ready to assume the position of judges bujt no where near the percentage of Indians
What critical changes were made to the practice of law at independence
The courts moved closer to English common law tahn they had been under the British colonial era,
This was partly due to the reason that the common law was reserved for the use of the English and expatriates during the colonial era
What were the weaknesses of the transplantation of the Kenyan Legal system
The nature of the bar and the limited development of case law; particularly in civil matters
Why did Kenya not have many lawyers like India
There was an explicit colonial policy to deny scholarships to East Africans for the study of law
Why was there that policy
The British experience in india had demonstrated to the British that indigenous lawyers trained in common law were the source of opposition
Explain the problem of the nature of the bar
Five years after independent , Kenya had 292 advocates in which only 11 of them were Africans..This number was too low. Moreover, the lawyer’s association did not self itself up to be independent from the government
Problem of development of case law
Kenya’s laws at the time of independence were insufficiently developed to empower rural economic development or even the resolution of longstanding conflicts
Why has Kenyan law not grown to fulfill the civil law body?
- There is lack of capacity on the part of the judges working in the area of civil law; overburdened with cases
- Judges in Kenya have been resistant to attempts to document their decisions leading to a situation in which there was no court reporting on civil matters due to corruption
Comparison of India and Kenya
- Both countries are slow in adjudicating commercial disputes e.
contracts, India- 365 days and 22 procedures while Kenya- 255 days and 25 procedures - The presence of democracy in India facilitated the development of law both legislatively and in terms of precedent while the absence of deep democracy in Kenya impeded the ability of the judiciary and the legal professsion to fulfil their roles in protecting the citizens
