Comparison of Kenya to India

Question 1

why did english law develop

Answer 1

to protect protect the power of individuals and limit the power of the state

Question 2

Strenghts of common law

Answer 2

evolutionary nature

Question 3

why is evolutionary an advantage

Answer 3

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

Question 4

common law= adversial system?

Answer 4

parties in a dispute are pitted against one another in a n oral context with expectation that the competition will reveal the truth

Question 5

What law did Kenya and India decide to follow

Answer 5

Western legal system as they trained indigenous lawyers in the law of the metropole during the colonial era

Question 6

Why did they choose to follow the law of the metropole

Answer 6

It was familiar and atleast there were some trained personnel in the country with experience in that form of law

Question 7

when was english common law established in india?

Answer 7

1727

Question 8

which courts were established

Answer 8

Madras, Bombay and Bengal

Question 9

why were they instituted

Answer 9

to correct some of the injujstices of the company rule and to adjudicate disputes among British subjects in these settlements

Question 10

why was common law at first transplanted in a rigid form in india

Answer 10

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

Question 11

what is the evidence of adaptation of common law in india

Answer 11

Indian advocates and pleaders in courts to consider issues of Islamic or Hindu

Question 12

How did common law continue to be transplanted

Answer 12

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

Question 13

When did India gain independence and when was the constitution formed and on what basis

Answer 13

India gained independence in 1947 and the constitution was enshrined in common law

Question 14

What is the post-colonial indian legal development

Answer 14

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 .

Question 15

What changes were made in the judicial system?

Answer 15

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

Question 16

What shows the success of transplantation and adaptation of common law in India

Answer 16

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

Question 17

Kenya

Answer 17

First British contact came later than India. Kenya used Indian procedure and Indian codes during the years of colonial control

Question 18

What were the difficulties in transplanting English law in Africa

Answer 18

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

Question 19

What happened at independence

Answer 19

Kenya embraced the common law system

Question 20

Were Kenyans trained to be lawyers at the time

Answer 20

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

Question 21

What critical changes were made to the practice of law at independence

Answer 21

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

Question 22

What were the weaknesses of the transplantation of the Kenyan Legal system

Answer 22

The nature of the bar and the limited development of case law; particularly in civil matters

Question 23

Why did Kenya not have many lawyers like India

Answer 23

There was an explicit colonial policy to deny scholarships to East Africans for the study of law

Question 24

Why was there that policy

Answer 24

The British experience in india had demonstrated to the British that indigenous lawyers trained in common law were the source of opposition

Question 25

Explain the problem of the nature of the bar

Answer 25

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

Question 26

Problem of development of case law

Answer 26

Kenya’s laws at the time of independence were insufficiently developed to empower rural economic development or even the resolution of longstanding conflicts

Question 27

Why has Kenyan law not grown to fulfill the civil law body?

Answer 27

1. There is lack of capacity on the part of the judges working in the area of civil law; overburdened with cases
2. 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

Question 28

Comparison of India and Kenya

Answer 28

1. Both countries are slow in adjudicating commercial disputes e.
   contracts, India- 365 days and 22 procedures while Kenya- 255 days and 25 procedures
2. 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