NAMES:

GROUP 7

ASSINMENT: JURISDICTION OF THE SUPREME

COURT OF KENYA
Common Law Rules of Statutory Interpretation
The common law rules of statutory interpretation are very useful and benefice to the
interpretation of the
Acts and in ascertaining what the ‘actual purpose’ was at enactment by the parliament.
These common law rules of statutory interpretation (guides or maxims to
construction) include the literal rule, the golden rule, the mischief rule and the class
rule (ejusden generis).The use of judicial interpretation to determine the exact
meaning of statutes or phrases in states is illustrated by a number of court decisions
including
Powell v Kempton Park Racecourse Co Ltd
[1899] AC 143 and
Brownsea Haven Properties Ltd v Poole Cooperation
[1958] CH 574.

Literal (Plain Meaning) Rule

The literal rule is used to interpret words of an Act as it was written thus applying the
literal meaning of the words and in this case judges can use dictionaries to identify the
meanings of particular words. In respect to the judicial interpretation of statutes by the
application of the literal or plain meaning rule the case of Amalgamated Society of
Engineers V Adelaide Steamship Co (1920) 28 CLR 129 illustrates this application in
relation to statutory interpretation.

The Golden Rule

The golden rule is used when the literal rule would result in an inconsistent or
illogical outcome, or when the literal rule is inconsistent with the purpose of the Act
and is used to apply a more lenient definition by taking into consideration the
circumstances and the purpose of the Act. The judicial interpretation of statutes by
applying the gold rule is illustrated by the case of Gray v Pearson (1857) 6HLC61; 10
ER 1216.

The Mischief Rule

The mischief rule is applied when the literal rule has been applied but the outcome is
still ambiguous. It is also applied to determine the real purpose behind the Act that is
the purposive approach and it is used to identify the mischief or misdemeanor that the
law is trying to prevent. The application of the mischief rule in respect to judicial
interpretation of statutes has been illustrated by the cases of Haydon’s Case
(1584) 3 CO Rep 7a; 76 ER 637 and Smith v Hughes
[1960] 1 WLR 830.
The Class Rule (ejusdem generis)
The class rule (ejusdem generis) refers to words that can be grouped together and
labelled under a general term
Purposive Approach and Extrinsic Materials
The Acts Interpretation Acts are traditionally used to assist the courts with the
interpretation of Acts (statutes or legislation) but this often also led to ambiguities and
inconsistencies in their interpretation and application. As a result parliaments often
introduce amendments directing the courts to interpret legislation in such a manner
that it truly reflects the actual or apparent purposive or intention of the legislators that
is commonly referred to as a ‘purposive approach or construction’. This purposive
approach of statutory interpretation is in fact an extension of the ‘mischief approach’
which a one of the common law rules that is often applied by the courts to assist with
interpreting Acts. The purposive approach is an improvement in the interpretation of
an Act because instead of just focusing on the actual problem, the courts now are
compelled to look at the main or actual purpose of the Act. The application of the
purposive approach to statutory interpretation by the courts is illustrated by Mills Mee
King (1990) 169 CLR 214 and Re Bolton; Ex parte Beane
(1987) 162 CLR 514.
Accordingly, to utilize this approach under the general common law the courts have to
now interpret the words of the legislation in a manner that will allow the particular
legislation to achieve its main objective or purpose, instead of just relying on the
literal approach which may be deficient in achieving the main purpose or objective of
the Act upon its enactment.
One of the significant outcomes of the purpose approach is that the legislation now
allows the Courts to use extrinsic (external) materials to assist in the interpretation of
provisions or sections of Acts. As a result of this shift from the traditional approach of
statutory interpretation the common law courts, can now use the following extrinsic or
external materials in order to assist with such interpretation, namely, reports of any
Royal Commission, Law Reform Commission and committees of inquiry; explanatory
note or memorandum that is attached to the Bill; any document that is declared by the
Act to be relevant;
Parliamentary debates; headings, margin notes and end notes of the Legislation being
reviewed; anything else that was recorded in the official reports of Parliamentary
proceedings; and international treaties or agreements that are referred to in the Act.

Maxims (Aids) to Construction

Maxims are not rules of law but instead are aids or guides to the actual construction of
an Act. Even though the legislative drafters to their very best to define words in a way
that all possible interpretation is covered, unfortunately there can be no single
definition that can cover all situations or perfectly describe a class of people, things or
acts. Accordingly, there are a number of maxims or aids to construction that the courts
can use to assist in determining the actual meaning of a word or phrase and the two
most important ones are: noscitur a sociis– ‘it is known from its associates’ or the
context rule and is used where a word is ambiguous or unclear in a group of specific
words; and ejusdem generis– ‘of the same kind, class or nature’ and is known as the
class rule and it is used to find a viable meaning for a broad general word.

Problems with Statutory Interpretation

There are a number of problems with statutory or legislation interpretation due to the
fact in the manner in which they are constructed. The courts over have adopted a
number of methods, approaches and ‘meaning’ of particular Act (statute or
legislation), but nevertheless problems continue to persist. These problems in respect
to the interpretation of Acts often arise as a result of certain inherent difficulties with
the doctrine of precedent and associated rules and principles, such as difficulties in
actually identifying the ratio decided (reason for the decision that creates the binding
precedent); difficulties differentiating between the ratio decided and obiter dictum
(Persuasive or influential only); the precedent may have more than one ratio decided
even though the cases be determined may be similar, it is unlikely that they are
identical and judge’s may be bound to follow prior similar decisions although they
may lead to unjust outcomes which is not an accepted or desires outcome.

Basis of Precedent – Level 1

To encourage certainty, consistency, and fairness in the English style of adversarial
system of laws, the evolution and application of the doctrine of precedent is
fundamental to the common law. The origins of the English method and system of
precedent is illustrated by Figure 2.1 Origins of Precedent. The main basis of the
system known as ‘precedent’ (doctrine of precedent) is simply that where a court has
decided a case in a similar manner, then in subsequent cases involving similar facts
should be decided in the same way. The legal principles that apply to any given facts
should apply to all similar facts in similar case in the future. The most significant
thing about precedent is that it develops and creates the common law and that it gives
rise to two types of precedent, namely: A binding precedent (arising from the ratio
decided– ‘reason for the decision’ – of a case) – which is binding and must be
followed and applied in all cases; and persuasive or influential precedent (arising from
the obiter dicta– ‘sayings by the way’ – of a case) – which are not binding on other
courts, but are considered by the courts in making its decision and may be followed in
some cases if appropriate. Accordingly, a binding precedent only gives rise to the
ratio decided of the case while a persuasive precedent which is not binding is referred
to as the obiter dicta of the case.19
Accordingly, a binding precedent only gives rise to the ratio decided of the
case while a peers
Construction of Legislation – Level 1
In order to assist with interpreting and or determining the ‘construction ’that is
interpret or ‘construe’ an Act, statute or legislation, the courts have applied several
approaches and strategies to assist them with the interpretation of a particular Act or
Acts. In order to understand such approaches or strategies it is essential to look at the
structure or form–construction ‘of an Act. Any Act contains a number of special
Characteristics’ and headings to assist with reading, interpreting and understanding
the particular act or statute and includes such things as; the number of the Act (if
relevant) and is important as it informs of the actual date in which the Act was passed
by Parliament. The table of provisions, known as the index or table of contents for the
purpose of enabling specific sections of the Act to be found easily.
The title of the Act which states the specific purpose of the Act or statute.
The date of assent (enactment) which is important as it identifies the starting date of
the new law• Internal division of the Act allowing for easy reference and consists of
several specific Parts and categories. The purpose of objects clause clearly setting out
the objectives of the Act as it was intended by Parliament upon enactment and is
beneficial in the process of interpretation. Headings which are beneficial in assisting
with easy reference and research into the Act.

Judge Made (Case) Law

The primary feature in the case or judge made law in both common law and equity
(fairness) is the doctrine of precedent. A precedent is defined as a ‘judgment or
decision of a court of laws that is cited as an authority for the legal principle or
decision. Basically, following a precedent means that a legal issue should be resolved
in a similar manner as a previous decision, and this process of following an
established and consistent procedure is commonly known as stare decisis and
Underpins the doctrine of precedent which is illustrated by Figure 2.2 Doctrine of
Precedent.

Ratio Decided
(Reason for Deciding) – Level 2

In a decided case it is only the ratio decided which means the reasons for the decision
of the case that is binding. This means that only specific parts of the decided case, that
is, legal principles on which the particular case was decided are binding and any other
legal statements made by the Judges are not binding. In their concluding judgments in
a case, Judges will make statements based on ‘principles of law’ which generally give
rise to the ratio decided of that case and is generally binding on all lower courts in the
same hierarchy. All the other legal statements that are made by the Judge in the case
that were not necessary to decide or determine the case are not binding and are called
obiter dicta.

Obiter Dicta
(Sayings by the way)
Legal statements or remarks that are not binding in a case are called obiter dicta. They
are remarks in passing by the judge that is, ‘sayings by the way’, and to not form part
of the actual binding precedent. In some instances the obiter dicta of the Higher
Courts or eminent Judges may in fact, form the basis for a future biding precedent (the
ratio decided of the case)
REFERENCES
1. Legal skills by Emily finch and Stefan fafinski
2. The business law in the global and internet environments by mallor,
banners, bowers and langvardt