SOURCES OF LAW IN KENYA
Introduction, law originates from source; a source of law is that which gives its forceand
validity in this topic will discuss the sources of in Kenya.
Objectives, the student should be able to explain the various sources of law in
Kenya
Kenya applies some laws. These laws have and origin or a source. In this topic thesources
of law are discussed.
SOURCES OF LAW
It is the origin of law. A source of law is said to exist and justified if it has a base andorigin that
gives law its force and validity.
CLASSIFICATION OF SOURCES OF LAW
a) Written - A source of law can be said to be written if contained in a formal
written document e.g., Kenya constitution.
b) Unwritten -A source of law is not contained any document e.g., Africancustomary
law or U.K constitution .
c) Local - Are those law made in the country e.g., Legislation.
d) Foreign - Are the laws made outside the country. English statute.
e) Principal - Are those laws written in a text recognized by the country.
f) Subsidiary - Are those laws made by inferior bodies mandated for that purpose.
SOURCES OF LAW IN KENYA
Sources of law of Kenya are contained in sect.3 of the Judicature Act (cap.8).Theseare;
a) The Kenya constitution and amendment.
b) Acts of Parliament\Legislation.
c) Subsidiary\Delegated Legislation
d) The substance of Common law and Doctrine of Equity
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e) African customary law.
f) Case law or Judicial Precedent.
g) Islamic law.
h) Specific acts of Parliament of U.K and One act of India.
i) English statute of general application in force in England on 12th august
.1897.
THE KENYA CONSTITUTION
Definition
A Constitution is a public document which regulates the relations between the stateand citizens
.as well as the relations among the organs of the Pte.
It contains those rules that determine the form of government, respective duties and rights of
government towards its citizens, respect rights and duties of citizens towards the government.
It can be written unwritten. A written constitution is where the fundamental principles and the
law of the land are included in a writtenformal document. Example is the Kenya constitution.
Unwritten constitution is where the laws of the land are not in any formal documenting e.g. U.K
Constitution.
THE KENYA CONSTITUTION
Definition
A Constitution is a public document which regulates the relations between the state and citizens .as well as the relations
among the organs of the state.
It contains those rules that determine the form of government, respective duties and rights of government towards its
citizens, respect rights and duties of citizens towards the government. It can be written unwritten. A written constitution
is where the fundamental principles and the law of the land are included in a written formal document. Example is the
Kenya constitution. Unwritten constitution is where the laws of the land are not in any formal documenting e.g., U.K
Constitution
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CHAPTER ONE: Sovereignty of the people and supremacy of constitutionCHAPTER TWO:
The Republic
CHAPTER THREE: Citizenship CHAPTER
FOUR: The bill of Rights CHAPTER FIVE: Land
and environmentCHAPTERSIX: Leadership and
Integrity
CHAPTER SEVEN: Representation of the peopleCHAPTER
EIGHT: The Legislature
CHAPTER NINE: THE EXECUTIVE
CHAPTER TEN: The Judiciary
CHAPTER ELEVEN: Devolved government
CHAPTER TWELVE: Public finance
CHAPTER THIRTEEN: Public service
CHAPTER FOURTEEN: National security
CHAPTER FIFTEEN: Commissions and Independent offices
CHAPTER SIXTEEN: Amendment of the constitution
CHAPTER SEVENTEEN: General provisions
CHAPTER EIGHTEEN: Transitional and consequential provisions
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PARLIAMENT\LEGISLATION
Is the second another source of in Kenya second to the constitution. Legislation refers to the law
which is made by a body specially constituted for that purpose. Legislation may direct or indirect
a) Direct legislation
This is where the law-making body is parliament. Parliament derives its law-makingpowers
from the Constitution. Law made by parliament is known as statute or Act parliament
b) Indirect legislation
This is where an independent body other than parliament makes law on the basis ofpowers
derived from an enabling statute. These bodies make rules. orders. By-laws etc. such bodies
include; Ministers, Chief Justice, local councils. Examples, TheMichuki Rule, Mututho
law etc.
Legislation in Kenya
Parliament is the supreme law-making body in the Section 46 of Kenyan constitution it
empowers the parliament to make laws by passing of bills.
BILLS
A bill is a proposed act of parliament. It is dried by a specialist in Attorney General Chamber’s
office. It is then introduced to parliament to be debated and discussed. If supported by majority.
It becomes lay after receiving Presidential assent.
Types of bills
Public bill; Public bill is a bill that affects the whole public and usuallyintroduced by the minister
concerned.
a. Private bill; It covers interest of a specific community. It is introduced by aminister or
Member of Parliament on matters important to him.
b. Private members bill; is a bill introduced by a private member of parliament on
matters touching the government
Stages of passing a bill
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a. First Reading
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Here a formal reading of title of bill is done to give notice of the bill to parliament. A motion
is made to pass it to the second reading, then moved to second reading and a date is fixed by
members.
b. Second Reading
This is the most important stage of the bill. The Minister concerned explain its purpose and
main policy involved. Every member is allowed to participate in the debate but speaks once.
At the of debate the bill is voted for. If supported by majority it is passed to next stage
c. Committee stage
The bill is passed to a committee which is selected in the national Assembly or the National
Assembly becomes the committee. The bill is considered in detail clause by clause, sentence
by sentence and paragraphs by paragraph. T h e Minister concerned
spends most of time on this stage. The bill is
then taken to the next stage.
d. Report stage
At this stage the bill is passed to the parliament to fix the date of the third reading.
e. Third Reading
During the third reading minor changes are done and parliament is asked to draft the bill in the
final form. A motion is passed to read the bill for the third time and it is read
f. Presidential assent
The bill is presented to the President for his assent. When the assent is received the bill
becomes law i.e. the Act of parliament. It becomes law of the land and entered in statute book.
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NB; the date of commencement is the day the President gives his assent. An order may be
given by the minister concerned e.g. the law of succession Act (cap160) wasreceived by the
President in 1972 became operational in 1980.
STATUTORY INTERPRETATIONS
Statutes are drafted by experts who take every wording is exact and free from ambiguity. In
some occasions a word or sentence may be unclear. The court will call the High Court to interpret
the true meaning at the time of deciding a case. The courtnormally applies the following rules.
a) The Literal; This means where wording of a statute is clear and exact it shouldbe taken in
its literal meaning.
b) The golden rule; Sometimes the wording of a ate if taken in its literal meaning may lead
to some absurdity or inconsistency or ambiguity, in such a situation the ordinary
meaning of word y be modified to eliminate the absurdity or ambiguity.
c) The mischief rule; Th i s rule allots the court to examine the purpose the statute
law was passed to reflect. The judge may adopt a construction which would
eradicate the mischief and provide remedy to the innocent party
SUBSIDIARY\DELEGATED LEGISION
This is when the parliament gives powers to some bodies to make law. The parliament delegates its
law-making powers to such bodies as cabinet secretaries, chief justice local authorities etc. the
indirect legislation appears in various forms namely;
a) Statutory instruments, rules and orders; these are usually made by cabinet secretaries in
charge of government departments. such rules must be submitted to parliament for
approval before they are in force.
b) By —laws; these are made by local authorities, public corporations, institutions and
such other bodies.
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Reasons\advantages to delegate
a) Parliament has insufficient time to legislate on all national matters. By delegating
some of its law-making powers it may save a lot time to do other things.
b) Parliament may not in session when need for making law arises, It is slow in
making law since the bill must pass through all the stages.
c) Some technical matters can be handled efficiently by delegated legislation. Some
matters must be handled by experts. Thus, they call them to make laws.
d) Future difficulties are better dealt with by delegated legislation. They can foresee
the future and thus try to tame and difficult issue.
e) Delegated legislation is flexible since orders roved impracticable are revoked
quickly. A ministerial rule can withdrawn or amended by the minister who issued
it.
Criticisms\disadvantages
a) Ministers are given peers to make policies on matters of principlewhich must
be h by parliament.
b) Publicity of delegated legislation is inadequate.
c) Parliament control is inadequate.
d) Judicial control is inadequate.
e) The delegated powers are so wide such that it creates uncertainty.
Control of delegated legislation
Delegated legislation may abuse powers vested in them by Parliament. Thus, there is need for
control. It may be controlled by;
a) By Courts
The court controls delegated legislation by application of ULTRA VIRES rule which means
“Beyond the powers’, this doctrine is by means of which means exercise control over the
subordinate bodies. The court declares the piece of delegated
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legislation of no legal consequences and declared void if I exceeds powers contained in enabling
statute or some presumptions of law, These are;
i. The people who have been given powers of legislation cannot delegate them to another
person. The delegated legislation is a delegate of parliament must exercise its powers
personally without delegating to anyone else,
ii. The enabling statute does not give powers to make unreasonable rules or inconsistent
with constitution.
b) By Parliament
The Parliament may nullify or declare apiece of delegate legislation void .rules made must be
reviewed passed or modified
SUBSTANCE OF COMMON LAW DOCTRINE OF EQUITY
Common law is unwritten law. was an English origin from ancient customs of people of
England. It was developed by judges on principle of stare decisis this law was not confined to a
particular area but administered in whole of England; It does not include the statutory lab or the
rule of Equity.
The Judicature Act sec.(3)c. recognizes the Common law as a source of in Kenya tothe extent
that courts finds them compatible with the needs of people of Kenya .Thecourts are free to
modify or reject the rules of common law and equity.
Common law court
a) The Court of Exchequer; this was first court to be established in 12th centurydeal with
dispute concerning payment of royal revenues.
b) The court of Common Pleas; this was the 2nd court to be established in 13thcentury
to deal with all civil cases and matters concerning land.
c) The court of Kings Bench; this was the last court to be set up in the 13th century. It was
called the Kings Bench because the king used to sit over this court. It mainly dealt with
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criminal matters and civil matters where the crown was a party
THE DOCTRINE OF EQUITY
Definition
It is afresh body of rules .by the side of original law, founded on distinct principlesand claiming
to supersede the law in virtue of superior sanctity inherent on those principles. Equity means
fairness or natural justice. They are set of rules administered and formulated by the court of
chancery before 1878 to amendment the common law. The rules of EQUITY were not a
complete system but section of rules which wereformulated to remedy defect in common law
and make it more appealing.
When the Lord Chancellor heard the appeals, he granted the following remedies;
a. Created new remedies such as injunction and specific performance.
b. Recognized certain wrongs such as trust
c. Recognized Equity doctrine of part performance
d. Recognized mortgagors right of redemption
e. The court procedures were simplified.
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PRINCIPLES \MAXIMS OF EQUITY
During the early development of equity, some firm rules were made to be followed by later
Chancellors when deciding disputes. These are;
a) He who seeks equity must do equity
b) He who comes to equity must come with clef ands
c) Equality is equity
d) Equity looks at the intent rather than form.
e) Equity looks on what outage done not what is done
NB; In case of any conflict tween common law and equity, equity prevails.
JUDICIAL PRECEDENT\CASE LAW
These are decisions made by judges on certain cases. According to this doctrine decision made
by a superior court binds lower court unless it was repealed or overruled. Therefore, judgment
made by superior court must be followed so long as the case is of similar nature. The decision of
High court binds magistrate courts Judges of High court are bound by decagons made by Court
of Appeal. Magistrate court does not create precedent.
Types of Judicial Precedent
1. Declaratory precedent: A judge applies an existing law without extending it.He merely
declares law,
2. Original precedent: The judge decides a case on the basis of general principles of law if
there no other precedent rely on, In this way he lays down an original precedent to be followed
in future in a similar case.
3. Distinguishing precedent: a judge may feel he does not want to apply a precedent since
he may do injustice. The judge will lay down his own material factsdifferent from those in hand.
He distinguishes the previous case thus creates a distinguishing precedent.
4. Overruling precedent: it is another way of distinguishing a case. The case is deprived
of its legal effects; thus, it cannot be appeared future. It is usually done whenthe judge was
wrong.
Advantages of case law
a) Certainty; the doctrine of stare decisis has contributed certainty and consistency of law.
b) Possibility of growth; Case law grows out of practical problems and keeps on changing
according to the needs of society.
c) Rich in detail; each principle of law applicable is supported by elaborated judgments of
judges, magistrates, lawyers, student to appreciate and apply to practical problems facing
them.
Disadvantages
a) Rigid; the judges have to follow decisions of superior court this destroys theoriginal
thinking of a judge unless he distinguishes or overrules a case.
b) Over subtlety; the concept of binding precedent contributes to judges makingartificial
precedent to avoid following earlier decisions.
c) Bulky and complex; Much of this case law is contained in a voluminous reportsdating
from ancient ages. They are referred to when ministering justice.
AFRICAN CUSTOMARY LAW
The Judicature Act (cap 8), recognizes African customary law as a source of law in Kenya. All
courts should apply this law used by the various customs of Kenyan tribes. The customary law
originates from traditions and practices of people of Kenya.
Limitations
a) Applicable to civil calmly.
b) Does not apply criminal cases.
c) Must pass through repugnant test before application.
d) Should not promote immorality or injustice
e) Should not be inconsistent with any written law.
Applied on the following matters;
a) Land held under customary tenure
b) Marriage, divorce, maintenance or dowry.
c) Seduction or pregnancy of unmarried woman
d) Enticement of or adultery with a married woman
e) Matters affecting status of woman, widows, and children relating to custody,
guardianship, adoption, and legitimating.
f) Succession, both testate and intestate.
ISLAMIC LAW
The rules of Islamic law are derived from Muslim religious Book Quran. It is a source of law in
Kenya. It is applied in Kadhi court. The parties must profess Muslim religion. It settles disputes
relating to;
a) Personal status
b) Marriage
c) Divorce
d) Inheritance
