English words sometimes have totally different meaning in law

English words sometimes have totally different meaning in law.

Photo credit: File | Nation Media Group

What you need to know:

  • Partisans on both sides of the issue are anchored on supposed understanding the word “Shall”.
  • Persons who are not lawyers may find it absurd to say that a person who has not suffered physical injury was assaulted.
  • The legal definition of murder is the deliberate or reckless causing of death by deliberate action on the part of a person.



The decision by Chief Justice David Maraga to send an advisory to President Uhuru Kenyatta to dissolve Parliament pursuant to Article 261 of the Constitution triggered some testy exchanges among Kenyans and other interested parties as to whether the President had any option other than dissolution of Parliament.

 The Article at issue states that if Parliament fails to enact the legislation required to effect what is called the two-thirds gender principle, then “The Chief Justice shall advise the president to dissolve parliament and the president shall dissolve parliament”.

Partisans on both sides of the issue are anchored on supposed understanding the word “Shall”.

Many will recall arguments of similar kind during the life of the Grand Coalition Government over a legal provision that stated that the President needed to consult the then Prime Minister before undertaking some constitutional functions of government.

Lawyers in Kenya tied themselves and the country listening to them in knots on whether the word “consult” required that the President and Prime Minister needed to agree on the course of action in order for the consultation to be deemed to have taken place.

Grammatical meanings

The public is left to wonder whether the lawyers are simply petty or there really is a difference between the meaning of words as ordinarily understood and as applied in law.

The plain answer that although the law draws words and concepts from ordinary grammar, it does not always use them in identical meaning.

Some grammatical meanings are applied with elasticity but at other times are almost contrary to the ordinary meaning.

An example would be the word assault. As used commonly, it implies the actual physical attack or beating up of another person.

Yet, in tort law, assault refers to the menacing approach towards a person as to cause apprehension that a physical attack will follow.

But it does not involve actually beating up or touching the person, which is actually called battery.

Persons who are not lawyers may find it absurd to say that a person who has not suffered physical injury was assaulted.

The other definition that differs considerably is that of murder. In ordinary English, causing the death of a person is considered murder.

Homicide

In law, on the other hand, there are different types of offences arising from causing the death of a person.

These are known generally as homicide and include infanticide, which means causing death of an infant by its mother.

Manslaughter is the other homicide, which involves the causing of death of a person – whether man or woman – by accident.

The legal definition of murder is the deliberate or reckless causing of death by deliberate action on the part of a person.

Still in the realm of criminal law, there is a unique offence in Kenya known as robbery with violence.

It is also known as capital robbery because it carried a mandatory death sentence, until the Constitution of 2010 outlawed mandatory death sentences as an abridgment of the independence of the Judiciary.

Ordinary thinking would be that this is an offence committed when a suspect forcibly robs another and by battery or attacks on the person in the course of the robbery.

However, the Penal Code of Kenya is clear that a robbery involving at least two persons or in which the robber is armed would constitute this offence, merely by virtue of the number of robbers or possession of weapons, whether or not force is used on the person!

The law that provides for the requirement of obtaining birth certificates was first enacted in 1928.

It defines birth as the issuing forth of a child from its mother after the 28th week of pregnancy, whether or not the child is alive at the time.

This is one area where the law is at odds with reality of progress in science, possibly on account of the period of its enactment and could lead to absurdity based on a presumption within it that a child cannot issue forth before the 28th week of pregnancy.

One would ask: what would happen if a child is born prior to that period? Would its mother not be considered as having given birth?

Civil Partnership Act

Another area where there is and has continued to be controversy on meanings is in the area of family and domestic relations laws.

The principal word has been marriage. Under English Commons Law, marriage was deemed to be the union of a man and one wife.

This definition is still accepted in Kenya and is tacitly endorsed by the Constitution, which gives a right to marry a person of the opposite gender.

The Marriage Act of Kenya refines this somewhat by retention of the opposite genders as partners in marriage but acknowledges that the unions could be polygamous.

The fact of marriage as a union of persons of the opposite gender is not universally accepted.

For instance, the Civil Partnership Act of the United Kingdom recognises a union of persons of the same gender as a marriage too. Another word deserving of consideration here is aircraft.

 While most people would not find it odd for aeroplanes and helicopters, many would be surprised that air balloons, gliders and even drones are aircraft in law.

How about the word motor vehicle? Most would think this refers to the traditional car.

But you would be amused to learn that the traffic statute of Kenya considers any mechanically propelled device, including bicycles, motorcycles and even tractors as motor vehicles.

The same legislation defines a road to include a car park, footpath or bridlepath on which motor vehicles can pass and to which the public has access.

Even the simple word person has a different meaning in law.

While it commonly refers to a human being, the word person includes companies and intangible bodies corporate.

But the law is not always out of sync in its definitions. One example is the word cattle.

As commonly understood, at least in East Africa, cattle refers to cows. But here the law is surprising correct in meaning. The Traffic Act of Kenya defines cattle to include oxen, bulls, cows, horses, camels, mules and asses, sheep, goats and pigs. From this definition, it would appear that cattle constitute almost all domestic livestock. On this, the English dictionaries agree with the law.

So while we continue to argue on the meaning and essence of words in social media and courts , the law, like any other profession, has its own meanings which may or may not be used in the ordinary sense.