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Conflict of Laws

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The development of codified law within the European context has necessitated a call for the development and adoption of similar rules in other parts of the world in a bid to inform the departure from applying common law and other rules elsewhere. In your view, do you believe that there is a case for developing such codified rules in the Kenyan context? (15mks)

The codification of laws is a way of domesticating laws and brings more certainty in the application of the laws since there will be a clear reference to which any dispute will be directed.
Codification of private international law bring about two pronged arguments being the constant tension between the need for legal certainty and predictability, on the one hand, and the need for flexible, equitable, and individualized solutions, on the other. This brings to light the kind of discretion the judge has in matters touching on private international law leading to uncertainty and unpredictability.
On the other hand, taking into account matters of comity, public policy and justice to the parties to the case, fixed rules that do not bear in mind the foreign element in the case can be a cause of in justice to either party since the dimensions, circumstances and exigencies of the particular cases need to be looked at on a case by case basis to achieve justice.
A country risks jeopardizing a broader scheme of "unification" by crystallizing local or national rules of conflict. The legislature of Kenya is not a universal law giver and hence will make the rules that are more appealing to the Kenyan context. As such, the rules might not conform or otherwise be in line with those of other countries that have codified their own rules of private International law.
Though intended to bring certainty in the judicial process, the multiplicity of laws as a result of codification by each country brings more confusion in the…...

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