The Kenyan legal system is descended from the British Common Law system. One of the fundamental doctrines of this Common Law is the doctrine of precedent, 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.
A precedent is a judgment or decision of a court, normally recorded in a law report, used as an authority for reaching the same decision in a subsequent case.
Loosely translated, the 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 decisions.
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 Magistrate Courts do not in themselves create any binding precedent for any court.
A lower court can decline to follow or be bound by the decision of a court above it where the lower court finds that the circumstances of the case before it are peculiar and different to those in the previous case. This is called distinguishing a case. The processes of distinguishing and overruling previous cases act as checks against a rigid application of the doctrine of precedent prevents bad decisions from acquiring the force of law.
This doctrine of precedent as properly applied greatly aids in the administration of justice in the following ways:
- It 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 of the courts.
- It ensures the impartiality and transparency of judges. Generally, a judge is bound to follow the law enunciated in a previous case unless he or she can overrule or distinguish it.
- It offers opportunities for the development of the law and the evolution of jurisprudence which cannot be provided by Parliament. The courts can more quickly lay down new principles, or extend old principles, to meet novel circumstances.