Judicial precedent is a very source of law in Kenya. Precedents are prior court decisions that serve as basis for deciding similar subsequent cases.
Later decisions, especially those of higher courts, can impact precedents in various ways.
Types of Precedents:
1. Binding Precedents
These are precedents that must be followed by lower courts within the same jurisdiction. When a higher court comes up with a precedent, lower courts have to apply and follow the precedent.
In Owners and Masters of the Motor Vessel Lilian v Caltex Oil Kenya Ltd (1989), the Court of Appeal's decision sets a precedent for future cases involving the liability of vessel owners for the price of goods and services supplied to their vessels.
2. Persuasive Precedent
These are decisions from courts outside the jurisdiction or lower courts within the same jurisdiction that are not binding although they can be considered by the court in reaching its decision.
Persuasive precedents carry weight and influence court's reasoning.
In the case of Ndyanabo v. Attorney General [2001] 2 EA 485, the East African Court of Appeal considered decisions from other jurisdictions, such as England and Canada, as persuasive authorities in interpreting the right to a fair hearing.
3. Distinguishing Precedent:
This occurs when a court finds that a previous court decision is not applicable to the current case at hand because the facts of the two cases are different.
This renders the previous precedent inapplicable.
In the case of Gatonye v. Attorney General [2011] eKLR, the court distinguished a previous decision based on the differences in the factual context.
4. Overruling Precedent
This is when a higher court overturns a previous decision of a lower court. This can happen in instances where the higher court finds that the previous decision was wrongly decided It can also happen when the law has changed since the previous decision was made.
In Republic v. Independent Electoral and Boundaries Commission & Others (2013) eKLR, the Supreme Court overruled the precedent set by the Court of Appeal in Republic v. Ringera & 2 Others (2009) eKLR, holding that the IEBC is not immune from judicial review.
5. Modifying Precedent
This is where a court clarifies the interpretation of an existing precedent without completely overruling it.
In Kericho County Returning Officer & Another v. Salim Liali Omar & Others (2013) eKLR, the Court of Appeal modified the previous precedent that stated the use of technology in elections was not mandatory. It stated that it use of technology can be required in some instances such as voter registration.