By Evarist Baimu Nyaga Mawalla - Home

interest are at stake. In any other situation the decision-maker should bebound to give reasons only if he is requested by a party to do so. Inreaching the view that in this branch of the common law variation isnecessary I have been greatly encouraged by the memorable words ofDENNING, L.J in Nyali Ltd v. Attorney-General [1955] All E.R. 646.Discussing the proviso to Article 15 of the East Africa order in council,1902 as amended by the East Africa order in Council of 1911, whichconferred similar power on the High court of East Africa to modify thecommon law, the learned lord justice said at p. 653The proviso says, however that the common law is to apply subject tosuch qualification as local circumstances render necessary. This wiseprovision should I think be liberally construed. It is a recognition that thecommon law cannot be applied in a foreign land without considerablequalification. Just as with an English oak so with the English common law.You cannot transplant it to the African continent and expect it to retain thetough character which it has in England. It will flourish indeed but it needcareful tending. So with the common law. It has many principles ofmainifest justice and good sense which can be applied with advantage topeoples of every race and colour all the word over but it has manyrefinements which are not suited to other folk. These off – shoots must becut away. In these far off lands the people must have a law which theyunderstand and which they will respect. The common law cannot fulfill thisrole except with considerable qualifications The task of making these401