The principle of party prosecution refers to the competence of a litigant to either commence or defend and to move the case forward through all its procedural stages, reinforcing the notion that litigation is a private matter conducted by both litigants without court interference unless requested.
The judge acts like an umpire to see whether the prosecution has been able to prove the case beyond reasonable doubt.
The judge sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of society at large.
The principle of party presentation refers to the competence of a litigant to investigate their own case or defense, formulate the issues, present the material facts, prove these facts, and raise legal arguments in support of these facts before a judge, remaining in control of the content of their claim or defense.
Lord Denning observed that justice should be blind to favour or prejudice but clear to see which way lies the truth.
The legal representatives of the parties.
The Adversarial System lacks dynamism and has no positive duty to discover truth, unlike the Inquisitorial System.
The judge plays a passive role and does not interfere in the proceedings except upon the request of one of the litigants.
In Kenya, as in other Anglo-American jurisdictions, the role of the judge is passive. The judge is restricted to the evidence that the litigants choose to present during trial or a hearing on motion and is not responsible for ensuring that the case presented by each litigant is complete.
The principle of bilaterality assumes that both litigants will have a fair and balanced opportunity to present their respective claims or defenses, with the belief that the truth will emerge if each party presents their own biased view of the issues in dispute.
Procedural law includes the law of evidence, civil procedure, and criminal procedure.
Aharon Barak states that he will join the majority without restating his dissent each time unless the dissenting opinion reflects an issue central to him.
Courts adhere to established substantive law while manipulating procedural rules in favor of the 'right' party.
Judges must act in a manner that preserves public confidence by ruling according to the law and their conscience, ensuring justice within the framework of the law, and understanding that judging is a way of life based on spiritual wealth and an objective search for truth.
Modern procedural Codes rely on full disclosure by the parties and the managerial powers of the judge.
The trial is oral, continuous, and confrontational.
Substantive law determines the rights and obligations of persons.
It adheres to the adversarial system of litigation.
A judge can play a more active role in public interest litigation. Generally, the court’s function is limited to adjudicating the issues raised by the parties and providing appropriate procedural sanctions.
The court held that the government may use illegally obtained evidence to impeach a defendant’s fraudulent statements during cross-examination to seek justice and arrive at the truth.
The Civil Procedure Act, Chapter 21, makes provision for procedure in civil courts.
Evidence is presented orally through examination, cross-examination, and re-examination.
Article 50(1) of the Constitution of Kenya guarantees that every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.
Adjective law deals with the procedure to enforce a right or duty as determined by substantive law.
A judge plays an active role within the bounds of statutorily defined procedural law to bring relevant facts on record.
Kenya inherited an Anglo-American system of law.
Substantive law and procedural (or adjective) law.
The exchange of pleadings to define issues in dispute and the preparation of cases for trial.
A judge is regarded as failing to exercise his jurisdiction if he opts to remain passive to the proceedings before him.
Adjective law (procedural law) exists to ensure that substantive rights are enforceable.
The adversarial nature places litigants in a competitive relationship where each presents separate and contradictory versions of the case for the court's consideration, with the belief that the truth will emerge from this process.
Justice Cardozo discusses the role of judges and the human limitations they face, emphasizing that judges do not stand aloof from reality.
The lawyer in adversarial systems handles the presentation and prosecution of cases. The prosecution and defense should have a balanced opportunity to investigate and present proof and legal argument.
The function of the courts is to resolve disputes between legal subjects or between legal subjects and the state. Both civil and criminal proceedings are formal systems of dispute resolution that are sanctioned by the state.
The US Supreme Court ruled that suppressing evidence favourable to defendants and using perjured testimony is against the search for truth and justice.
The principle of party prosecution means that the investigative function during the pre-trial stage is the sole responsibility of the litigants. During the trial stage, the judicial official depends on how the litigants performed their investigative function during the pre-trial stage and on the thoroughness of their presentation at the trial.
Without procedural law, there would be no standardized method of litigation, leading to ad hoc decisions and lack of procedural consistency.
In civil disputes, it is up to the parties, not the court, to initiate and prosecute litigation.
Procedural law sets out the rules for enforcing substantive rights in court.
The procedural system in Kenya is adversarial.
Order 21, rule 4 states that judgments in defended suits shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision.
Civil procedure law enables the enforcement of the rules and provisions of civil law.
Substantive law defines legal rights and duties in everyday conduct.
