SOURCES OF LAW OF KENYA

The Nature of Law

 Law can be described as a collection of rules

of human conduct prescribed by human
beings for the obedience of human beings.
 Law and Morality
– Certain crimes are immoral however, not all forms
of immoral conduct are illegal.
– The laws of any country are to some extent a
form of expression of the morality of that country.
Law and Justice
 Rules of law should aim to achieve justice.
The function of the courts is to administer
justice according to the law.
Functions of Law

 Structuring and controlling public power

 Facilitating and effecting personal choice
 Dissolution of social conflicts
 Standard setting and control mechanism
 Prevention of anarchy
Classifications of Law

 Public Law-the State has an interest in.

Includes; Constitutional Law, Administrative
Law, Criminal Law.
 Private Law-concerned with rights and duties
of persons towards persons. Includes; Law of
tort, law of contract, law of property, law of
succession, law of Agency, law of insurance.
 International law consists of that body of law which
regulates the relations between states. It is based on
customs, treaties and conventions.
 Disputes between states can be settled in the
international court of Justice at the Hague in Holland
but litigant states must consent to its jurisdiction.
There is also Private International Law concerned
with determining what system of State Law shall
apply in a case which contains of a foreign element.
The Sources of Kenya Law

 The sources of the Law of Kenya are as follows:

 The Constitution of Kenya
 The Legislation which includes:
 i) Acts of the Parliament of Kenya
 ii) Specific Acts of the Parliament of the UK cited in
the schedule to the Judicature Act and the Law of
contract Act.
 iii) One Act of Parliament of India
 iv) English statutes of general application in force in
England on 12th August 1897
 3. Subsidiary legislation
 4. The substance of the common law, the doctrines
of equity and the Statutes of general application in
force in England on the 12th Aug 1897. It should be
borne in mind that these only apply “so far only as
the circumstances of Kenya and its inhabitants
permit and subject to such qualifications as those
circumstances may render necessary.
 5. African customary law
 6. Hindu customs
Written Sources

1. THE CONSTITUTION OF KENYA

 A constitution contains the basic rules and
regulations that govern the people of a state.
 The constitution is the ‘most important’ source of law
in Kenya.
 The constitution of Kenya is a written constitution
originally enacted on 12th December 1963.
 The current Constitution of Kenya is a result of a
lengthy process of drafting and revision that saw the
country go to a referendum on 4th August 2010.
 It was later promulgated on 27th August 2010.
 The constitution contains 18 chapters
 Constitutional amendment requires a vote of
65% of all members of the National
Assembly
 The constitution is supreme and takes
precedence over all other forms of law,
written and unwritten.
 If any other law is inconsistent with the
constitution, the constitution prevails and the
other law to the extent of the inconsistency
is void.
Legislation

 By legislation is meant Acts of Parliament.

 The legislative power of parliament is
exercisable by Bills passed by the national
assembly.
 When a bill is passed by parliament it is
presented to the president for his assent.
When this assent is given, it becomes law
and by definition an Act of Parliament.
 A bill must receive three readings in the
National Assembly. The second and third
readings are occasions for wide debates on
the main objects of the Bill under discussion.
 Detailed consideration is left to a committee
stage which takes place either in a select
committee or the national assembly itself.
 Thereafter the president must give his assent
to the Bill before it is passed into law.
 Article 115 of the Constitution indicates that
within fourteen days after receipt of a Bill, the
president shall assent to the bill or refer the
bill back to parliament for reconsideration
noting any reservations he may have.
 If a bill is referred back to parliament for
reconsideration, parliament may either pass
the bill a second time without amendment
despite any reservations by the president.
 This is done by a vote supported by two –
thirds of the members of the National
Assembly and two- thirds of the delegations
in the senate.
 The president is then forced to sign the bill
into law within seven days.
Advantages of Legislation

1. Fills in gaps in law

2. It has the power to effectively abolish the existing law.
3. The making of legislation allows for efficient division of labour
in the sense that the legislative becomes differentiated from
the judiciary. The duty of the former is to make laws, while
that of the latter is to interpret and apply the law.
4. Acts of parliament are not generally retrospective in nature.
5. Statute law is easily accessible. It is available in all legal
libraries and some of it is available online. It is also generally
brief.
Disadvantages of Legislation

1. The laws may be imposed on citizens by the ruling or the

dominant class.
2. To some extent, statute law is the wish of the members of
parliament and not the wish of the people.
3. The procedure of law making is too formal, lengthy and
unresponsive to cater for urgent needs.
4. Technical and bulky bills, which may be important, rarely
receive sufficient appreciation in the national assembly.
5. Acts of Parliament is sometimes lengthy and very difficult to
read and understand.
 A new Act binds all people in Kenya.
 An Act may come into operation either at the
time of assent or at a later date to be
determined by ministerial order.
 As parliament is sovereign, it can make,
amend or repeal any law subject to the
constitution.
 Several English Acts are applicable in Kenya
 Similarly, at one time, several Indian Acts
were applicable in Kenya, however only one
Act of Parliament of India in now applicable;
the law of Succession Act (Cap 160).
 The schedule to the Judicature Act (Cap 8)
contains a list of Acts of parliament of the
United Kingdom applicable in Kenya e.g.
Evidence Act, Conveyancing Act etc.
 There are also a large number of Acts of
general application in England on the 12th
August 1897
 An English statute of general application on
the reception date, if repealed by a later
English statute would still be law in Kenya
 The reception date of 12th August 1897 is
important as the English statutes applicable
in Kenya are in the form they had at the
reception date. This means that any
amendment of such statutes in England have
no effect in Kenya.
Subsidiary Legislation

 Subsidiary legislation is part of the written

law and is, therefore, a source of law. It is
also known as delegated legislation .
 Local authorities, statutory boards,
professional bodies exercise a delegated
power to legislate.
Reasons for delegated legislation

 Parliament has not the time to enact all

rules; otherwise the parliamentary machine
would break down.
 The technicality of legislation; allows for
consultation with outside bodies
 The need for flexibility outdated rules can
be more easily changed
Reasons for delegated legislation
ctd…

 The impossibility of seeing all contingencies

in the initial or enabling statute.
 Opportunity for experiment
 Need for rapid action e.g. in times of
emergency
Delegated legislation has been
criticized for the following reasons:

 Legislation is passed in skeleton form,

leaving matters of principles to be decided
by delegated legislation
 Inadequate parliamentary control
 Delegated powers are so wide, thus adding
to the uncertainty of the law
Delegated legislation has been
criticized for the following reasons:

 Delegated powers are loosely defined, thus

detracting from judicial control
 Lack of publicity and advance consultation
with interests affected
 Lack of judicial control
 Retrospective operation
 If Subsidiary legislation conflicts with a
statute, the statute prevails. Otherwise,
subsidiary legislation takes precedence over
judge made law.
 All subsidiary legislation is made under the
express authority of an Act of Parliament and
must comply with any procedure laid down
by the Parent Act.
UNWRITTEN LAW

Substance of the Common Law

 The common law consists of the ancient customs
and usages of England which have been recognized
and given the force of law.
 The common law has been developing for nearly a
thousand years and is embodied in the reported
decisions of English courts stretching back to the
13th century.
 The common law is in itself a complete system of
law both civil and criminal.
 Common law may mean rules developed
through precedents rather than created by
Acts of Parliament.
 The common law system was
characterised by:-
– Writ System
– Doctrine of Stare Decisis
 Actions or cases at common law were
commenced by a writ obtained from the royal
office, the chancery. Every complaint had a
separate writ.
 The writ was a document which stated the
nature of the complaint and commanded the
sheriff of the country where the defendant
resided to ensure that the defendant
attended court on a specified date.
 Stare decisis is a system of administration of
justice whereby previous decisions are relied
upon as law in subsequent cases where the
facts are the same.
 The principle of stare decisis was used in the
common law courts.
 The common law system was characterized
by various weaknesses: -
1. The writ system
2. Procedural technicalities
3. Delays
4. Non-recognition of the trust relationship
5. Inadequate remedies
6. Stare decisis
Doctrines of Equity

 Equity ordinarily means fairness or justice.

 It is a branch of the law of England that was
developed to supplement the common law.
 Equity developed to mitigate the harshness of the
common law.
 Its evolution is traceable to the early petitions to the
King by persons dissatisfied with the common law.
 The king as the fountain of all justice would ensure
that justice was done in each case.
 At first, the King heard the petitions and decided the
case on the basis of what he thought was fair.
 As the petitions grew, it became overwhelming for
the King to hear them himself.
 The King then decided to create the office of the
Lord Chancellor.
 The Lord Chancellor had to be a priest and a
statesman. He heard the disputes and decided the
issue on principles of fairness.
The decisions of the Lord Chancellor varied to a very
great extent. To introduce consistency in the
administration of justice, the courts of equity:
– Adopted the doctrine of Stare Decisis in 1700
– The maxims of equity were developed and adopted in
making decisions.
Some of these maxims are;
– Equity is equity.
– Delay defeats Equity.
– He who comes to equity must do so with clean hands.
 These maxims guided the chancellors and
helped them to make as uniform decisions as
possible.
 Equity developed as a modification of
common law.
 It developed to supplement and not to erase
the common law. It is therefore described as
a gloss on common law.
Advantages of development of Equity

 Equity’s exclusive jurisdiction.

 Equity’s concurrent jurisdiction:
 New Remedies - Equity recognized additional
remedies e.g. injunction, specific performance and
winding up.
 The Lord Chancellor’s courts adopted other
methods to facilitate administration of justice.
 Stare decisis
The Doctrine of Stare Decisis

 Decisions handed over by court in earlier cases play

a significant role in the administration and adoption
of law in many legal systems.
 This is referred to as the doctrine of precedent or
stare decisis.
 The doctrine of stare decisis requires that a court
having once decided a case in a particular manner
should follow the decision in all subsequent cases
involving the same legal issues.
 The doctrine of stare decisis also requires
that inferior courts are bound by the
decisions of superiors courts.
 Therefore, every court is bound by the
decisions of all the courts superior to itself
and the court of appeal is bound by its own
decisions.
 Decisions of the Court of Appeal of Kenya
are normally binding on itself, subject to what
has been said, the High Court and the
Magistrate’s Courts. Decisions of the High
Courts are binding on the magistrate’s
courts.
 Common law may also mean rules
developed through precedents rather than
created by Acts of Parliament.
 Precedent- when a judge gives his decision
in a case before him, this has two elements:
1. The actual decision affecting the parties
2. The principles of law which have caused the judge
to arrive at that decision.
This legal principle is otherwise known as the ratio
decidendi (the reason for the decision). The ratio
decidendi has to be extracted from the report of
the case. The ratio decidendi is what is binding.
 Where the case concerns facts or situations which
are comparable with earlier cases heard by the
courts, the judge will normally apply the principles
from earlier cases.
 The English common law and doctrines of
equity remain a source of the Law of Kenya
but “ so far only as the circumstances of
Kenya and its inhabitants permit and subject
to such qualifications as those circumstances
may render necessary”
 The common law of Kenya has its roots in
the English Common Law, but the decisions
of East African courts are related to East
African conditions.
 The body of the Kenya Common Law is also
swollen by a substantial number of Kenya
cases interpreting Kenya Statutes.
Advantages of the system of precedent

 One of the greatest advantages of the

system of binding precedent is that the rules
have evolved from real life cases and are
therefore practical.
 It promotes certainty, allows for growth and
contains a wealth of detail.
Disadvantages of the system of
precedent

 Once a rule has been laid down, it is binding

even though the decision was wrong
 It creates a bulky system.
 The system can at times be very uncertain
due the role played by judges.
African Customary Law

 The Judicature Act recognizes African Customary

Law as a source of Law.
 Before the adoption of English law, there were rules
applicable to the different ethnic groups in Kenya
and these rules formed what is described as African
Customary Law.
 Customary Law includes for example the following
matters- land held under customary tenure,
marriage, divorce, dowry, maintenance, claims in
contract and tort, succession etc.
 Customary law as a source of law in Kenya is
based on the customs, usage and practices
of the various ethnic groups of Kenya.
 Not all customs may be relied upon in a
court of law in the settlement of a dispute.
 For a custom to operate as law, it must have
the following characteristics: -
 Reasonableness: the custom must be reasonable. It must
not lend itself to excesses, and it must be easily applicable.
 Not repugnant to justice or morality: customary laws must be
just, fair and moral.
 Conformity with an Act of Parliament: a custom must not be
inconsistent with an act or Acts of Parliament.
 Immemorial: it must have been observed for a long time. it
must have existed for such a long time that no living person
can remember when it did not exist.
 African Customary law will only apply in civil
case and only when one of the parties is
subject to or affected by it. Customary law
will apply only if it is not “repugnant to justice
and morality or inconsistent with any written
law”
Islamic Law

 It is a very limited source of law in Kenya.

Muslim law is applied by Kadhi’s courts when
“all parties profess the Islamic religion” but
only as to “questions of Muslim law relating
to personal status, divorce or inheritance”
HINDU CUSTOMS

 Hindu custom is applicable under section 5 of the

Hindu Marriage and Divorce Act. Section 2 of the
Act defines a ‘custom’ as a rule which ‘having been
continuously observed for a long time has attained
the force of law among a community, group or
family, being a rule that is certain and not
unreasonable, or opposed to public policy’ .
 Hindu customary rites are a source of Kenyan Law
only for purposes of solemnizing Hindu marriages.