Key Concepts

Karibu! Your Journey into Commercial Law Starts Here.

Habari mwanafunzi! Welcome to Commercial Law. You might be thinking, "I'm an HR professional, not a lawyer! Why do I need this?" Well, think of it this way: HR is the heart of a company, and law is the skeleton that gives it structure and keeps it standing strong. From employment contracts to workplace policies and disputes, law is everywhere. This first lesson will give you the foundational building blocks—the key concepts—that you'll use throughout this course. Let's dive in and build that legal muscle! 💪

What Exactly is 'Law'?

At its core, law is a system of rules that a country or community recognizes as regulating the actions of its members and which it may enforce by the imposition of penalties. It's the official "how-to" guide for society to function smoothly.

The main purposes of law in Kenya are to:

• Maintain Order: Think about traffic laws in Nairobi. Without them, it would be pure chaos!
• Resolve Disputes: Provides a formal way to solve disagreements, like the Employment and Labour Relations Court for workplace issues.
• Protect Rights & Liberties: Your rights as an employee under the Employment Act, 2007, are a perfect example.
• Regulate the Economy: Laws from the Central Bank of Kenya (CBK) regulate M-Pesa and our banking systems.

The Sources of Law in Kenya: Where do the Rules Come From?

Kenyan law isn't just one big book of rules; it's a rich mixture drawn from different sources. Imagine it as a hierarchy, a pyramid where the most important source is at the very top.

      +-----------------------------+
      | The Constitution of Kenya   |  (The Supreme Law)
      +--------------+--------------+
                     |
      +--------------+--------------+
      |    Legislation (Acts of     |
      |        Parliament)          |  (e.g., Employment Act, Companies Act)
      +--------------+--------------+
                     |
      +--------------+--------------+
      |    Common Law & Equity      |  (Inherited principles from English Law)
      +--------------+--------------+
                     |
      +--------------+--------------+
      | African Customary & Islamic |
      |             Law             |  (Applied in specific personal cases)
      +-----------------------------+

The most important thing to remember is that The Constitution of Kenya, 2010 is the supreme law. Any other law that conflicts with it is considered void. It's the ultimate boss!

Kenyan Scenario: Imagine a company creates a new policy that says employees can be fired for getting pregnant. This policy would be illegal and void because it directly violates Article 27 of the Constitution, which prohibits discrimination on the basis of pregnancy. The Constitution always wins!

Image Suggestion: A vibrant, majestic Baobab tree representing the Kenyan legal system. The strong trunk is labeled 'The Constitution of Kenya, 2010'. Major branches are 'Legislation (Acts of Parliament)', 'Common Law & Equity'. The roots are 'African Customary Law' and 'Islamic Law'. The style should be colourful and symbolic, set against a Kenyan savannah backdrop.

Public Law vs. Private Law: Who is Involved?

We can classify law into two broad categories based on who the dispute is between:

• Public Law: This involves the state or government. It's about the relationship between the government and its citizens. Examples include:
  • Criminal Law: The State vs. an accused person (e.g., the Republic vs. John Doe).
  • Constitutional Law: A citizen suing the government for violating their rights.
• Private Law: This governs the relationships between private individuals or organisations. This is where most of Commercial Law lives! Examples include:
  • Law of Contract: Your employment contract with your employer.
  • Law of Torts: A person suing another for negligence (e.g., a car accident).

Civil Law vs. Criminal Law: A Tale of Two Burdens

This is a crucial distinction. Though they can arise from the same event, they are handled very differently.

Criminal Law:

• Purpose: To punish those who commit crimes (wrongs against society).
• Parties: The State (prosecution) vs. The Accused.
• Burden of Proof: The state must prove guilt "beyond a reasonable doubt." This is a very high standard.
• Outcome: Punishment (e.g., fine, imprisonment).

Civil Law:

• Purpose: To compensate a person who has been wronged.
• Parties: The Plaintiff (person suing) vs. The Defendant (person being sued).
• Burden of Proof: The plaintiff must prove their case "on a balance of probabilities." This means it's more likely than not that their claim is true (>50%).
• Outcome: A remedy (e.g., payment of damages, an injunction).

    Burden of Proof Visualized:

    CIVIL CASE (Balance of Probabilities)
    Is it more likely than not (>50%)?
    [-----------|###########]
    No          Yes

    CRIMINAL CASE (Beyond a Reasonable Doubt)
    Is there any reasonable doubt (~99%)?
    [----------------------#]
    Guilty                 Not Guilty

HR Example: An accountant at a company is caught stealing money. The company reports this to the police, and the state initiates a criminal case against the accountant for theft. Separately, the company can file a civil case against the accountant to recover the stolen funds. The criminal case is for punishment; the civil case is for getting the money back.

The Kenyan Court System: The Ladder of Justice

As an HR professional, it's good to know the basic structure of our courts, especially the one that handles your cases: The Employment and Labour Relations Court.

    [ Supreme Court of Kenya ]   (Final court of appeal)
               ^
               |
    [    Court of Appeal     ]
               ^
               |
    +----------+-----------+
    |      High Court      | (Supervisory role over lower courts)
    |                      |---> [ Employment & Labour Relations Court ]
    |                      |---> [ Environment & Land Court ]
    +----------+-----------+
               ^
               |
    [  Magistrates' Courts ]   (Where most cases begin)
               ^
               |
    [    Tribunals &        ]
    [    Kadhis' Courts     ]   (Specialized courts)

For you, the Employment and Labour Relations Court is key. It has the special status of the High Court and deals exclusively with employment and industrial relations matters.

Who is a 'Person' in Law?

This might sound like a funny question, but in law, a 'person' isn't just a human being!

• Natural Person: That's you and me. A human being with legal rights and obligations from birth to death.
• Legal/Artificial Person: An entity, like a company, that the law recognizes as having its own separate legal identity. It can sue, be sued, own property, and enter into contracts in its own name.

Image Suggestion: A split-screen image. On the left, a diverse group of Kenyan professionals (natural persons) are standing together. On the right, the iconic KICC building with the logo of a major Kenyan company like 'Safaricom PLC' or 'KCB Group' on it, labeled 'Legal Person'. An arrow shows that the company can enter a contract, separate from the people who work there.

This concept, called separate legal personality, is fundamental. It means Safaricom PLC can sign a contract, and that contract is with the company itself, not with its CEO or shareholders. This protects the personal assets of the owners from the company's debts. It’s a cornerstone of modern business.

Conclusion: You've Laid the Foundation!

Congratulations! You've just covered the absolute bedrock of Commercial Law in Kenya. You now understand what law is, where it comes from, how it's classified, and how the court system works. These concepts are the lens through which you will view everything else in this course.

Food for Thought: As you go about your week, try to spot these concepts in the news or in your workplace. Did you read about a new bill in parliament? That's Legislation. A story about a court case? Ask yourself if it's civil or criminal. The law is all around us, and you're now equipped to see it more clearly. Well done!