Business /commercial law revision kit question and answer

With reference to the nature and classification of law, differentiate between the following:
(a) Constitutional and administrative law. (4 marks)
(b) Codification and consolidation. (4 marks)
(c) Civil burden of proof and criminal burden of proof. (4 marks)
(d) Statute law and judicial precedent. (4 marks)
(e) Law of succession and law of trust. (4 marks)

ANSWER
(a) Constitutional law:
• This is a branch of law which creates the principal organs of government.
• It sets out the powers and functions of these organs.
• It generally lays down the fundamental principles of a limited government.

Administrative law:
• This is a branch of law which is concerned with the relations between various state bodies and officers.
• It is concerned with the exercise of power state bodies and officers.

(b) Codification:
• This is the process of bringing together all the unwritten law in a specific area to constitute a comprehensive code.
• It relates to unwritten law e.g. Sale of Goods Act.

Consolidation
• This is the process of bringing together into one statute the provisions of other statutes.
• It relates to written law e.g. Companies Act.

(c)

• Burden of proof in civil cases is borne the plaintiff i.e. it is the onus of the plaintiff to prove his allegations.
• The standard of proof is on a balance or preponderance of probabilities.
• The burden of proof in criminal cases is borne the prosecution.
• It is the duty of the prosecution to prove the accused guilty.
• The standard of proof is beyond any reasonable doubt or shadow of doubt or shadow of doubt.

(d)

• Statute law is law made parliament directly.
• It creates new law where none existed or amends existing law.
• It creates rules to regulate future conduct.
• It is formal and supreme over unwritten law.

• Judicial precedent or stare decisis or caselaw is a system of administration of justice whereprevious decisions are relied upon in subsequent similar cases.
• The ratio decidendi of an earlier decision is relied upon in a subsequent similar case.
• It does not always create new law.
• It is based on reasoning and is unwritten.
• It is subordinate to statute law.

(e)
• The law of succession is concerned with the disposition of property after death.
• It deals with the devolution of a deceaseds estate.• It is concerned with ascertaining and giving effect to the wishes of the deceased and providing for dependants.
• The bulk of the law of succession in Kenya is contained in the Law of Succession Act Cap 160.
• The law of trust is concerned with circumstances in which persons expressly, impliedly or constructively hold property on behalf of others.
• It deals with the rights and duties of trustees and beneficiaries.
• It also prescribes remedies for breach of trust.



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