Interpretation of Statutes

General Principles

There are three general principles applied in common law legal systems as pertains to the interpretation (construction) of statutes. These include the Golden Rule, Mischief Rule, and Literal Rule.

The Golden Rule

This allows the Court to modify the literal meaning of the words of a statutory provision when such an interpretation might lead to absurdity, injustice, or contradiction with other laws. This can be applied narrowly or broadly. A narrow application arises where a word might have more than one possible meaning, allowing the court to select a meaning that avoids an absurdity. The broad application arises where there is greater departure from the literal meaning of a wording whose application would lead to an absurdity.

As an example of the application of this rule, in the case of R v Allen (1872), a defendant was charged with the offence of bigamy for the ‘marriage’ a second wife. However, under the literal interpretation of the specific statute, it would be impossible to commit such an offence since the law would not recognise a second marriage as a valid. The Court expanded the meaning of ‘marry’ to equate to ‘to go through a marriage ceremony’.

Additionally, in Alder v George (1964), the defendant was charged with obstruction ‘in the vicinity’ of a prohibited area, even though the obstruction was caused inside the prohibited area. The Court implied that the phrase meant ‘in or near’, freeing itself from the literal meaning of the word and finding him guilty.

The Mischief Rule

Under this rule, the Court attempts to find the intention of the legislature when it created a specific provision; essentially asks whether in enacting the statute, Parliament intended to rectify a particular mischief, though it might not be conveyed by a literal reading of the wording. Therefore, the Court would interpret the provisions in a manner that would “suppress the mischief and advance the remedy”.

In the process of the application of this rule, the Court considers the following, as laid out in Heydon’s Case (1584):

1.      What the common law was before the making of the Statute,

2.      What the mischief and defect was that common law did not provide,

3.      The remedy that the Parliament provided to cure the mischief or defect,

4.      The true reason for the remedy.

As an example, in Smith v Hughes (1960), the defendants were charged with the crime of solicitation “in the street” under the Street Offences Act 1959. However, at the material time of the offence, the defendants had been calling on men from balconies and windows overlooking a street. The Court held that the mischief that the statute was aiming to prevent was the annoyance of the public by the activities of the prostitutes; this mischief would be equally caused by prostitutes who were not physically in the street.

The Literal Rule

This rule is based on the idea that courts should apply the plain and ordinary meaning of the wording of a statute in its interpretation. In other words, the courts should the law as it is written, not as it was intended to be. This rule is often associated with the doctrine of parliamentary sovereignty, which holds that the legislature is the supreme law-making authority and Courts must respect its will.

Under this rule, ordinary words are given their ordinary meanings, applying local socio-cultural linguistic norms, unless a statute explicitly defines some of its terms or unless the plain result would be cruel or absurd.

An interesting instance where this was applied was in R v Harris (1836) where the defendant bit off the victim’s nose. He was then charged using a statute that made it an offence ‘to stab, cut or wound’. The court applied the literal meaning of the wording which implied that an instrument, such as a knife, had to be used. Hence, the defendant was acquitted as he had used his teeth instead.

Statute interpretation in Kenya follows largely in the footsteps of its common law roots, with additional domestic layers, key of which is the supremacy of the Constitution.

Supremacy of the Constitution

The Constitution, in Article 2(4) declares itself as the supreme law of the land, and that any law that is inconsistent with it is void to the extent of that inconsistency. The Court is therefore guided by and entrusted to protect the principles enshrined in the Constitution. Hence, it must therefore adopt a purposive approach to constitutional interpretation that promotes the spirit and objectives of the Constitution. This adds a critical layer to statutory interpretation referred to as constitutional alignment, and is applied in several ways:

Harmonious Interpretation

The Court will actively seek harmony between the Constitution and Statutes. For example, in Republic v Independent Electoral and Boundaries Commission Ex Parte Khelef Khalifa & another [2017] eKLR, the High Court interpreted the Elections (General) Regulations, 2012 and Fair Administrative Action Act, 2015 in light of the Constitution's right to free, fair and regular elections, contending that the respondent had a constitutional and statutory obligation that it did not comply with.

Striking Down Inconsistent Statutes:

When statutes clash with the Constitution, courts can declare them invalid. In Maina Kiai & 2 others v Independent Electoral and Boundaries Commission & 2 others [2017], the petitioners challenged the constitutionality of specific provisions in the Elections Act, 2011 and the Elections (General) Regulations 2012. The Court found these provisions in contravention with the Constitution and were therefore null and void.

Customary Law

Article 2(4) acknowledges customary law as part of the law of Kenya, but with two crucial caveats:

a.      Non-repugnancy: it must not be repugnant to justice or inconsistent with the spirit of the Constitution. For example, certain customary land practices that are discriminatory to women have been rendered incompatible with the Constitution.

b.      Legislative precedence: Statutes prevail over customary law in case of conflict.

As such, customary law is therefore a conditional partner in the interpretation of Statute, where it can inform the construction of ambiguous wordings, such as clarifying land tenure principles of communities. Additionally, it might supplement understanding and promote substantive justice by filling in the gaps where statues offer limited guidance.