THE SOURCES OF KENYA LAW

The meaning of sources of law

(a) The source of law means the historical genesis of law i.e. its origin, base, and from
where it derives its forces and validity).
(b) A source of law is a “place” to which reference can be made in order to discover the
law that is applicable in a given country (Kenya) on a given issue and at a given time
e.g. foreigners to exchange money. In this case “place” can mean a statute book, an
Act of parliament, the practices or traditions or customs of people and learned
textbooks and writings.
It is this second meaning that we shall view when discussing sources of law in
Kenya. With the second meaning there is the Judiciature Act cap 8 section 3 which has
listed the sources of laws of Kenya.
The following are the sources:-
(i) The Constitution of Kenya.
(ii) The Act of Parliament and subsidiary legislation.
(iii) Common law of England and doctrines of equity.
(iv) Case law of judicial precedent.
(v) The African customary law.
(vi) Islamic law.
(vii) Statutes of general application.

(i) The Constitution of Kenya

The constitution of Kenya is a written constitution, written because it is found
in one comprehensive document which regulates the relations between the state and
the citizens as well as the relations between the organs of the state. The constitution
of Kenya was enacted on 27th August 2010.
The constitution of Kenya is a source of law in three ways:-
(a) This conunstitution makes legal provisions on certain matters of this country
which will never be found in any other law except in the constitution itself.
The constitution is an exclusive source of law on such matters.
- The Republican status of Kenya – Section IV (The fact that it will be a
Republic).
 - The creation and preservation of the public seal, i.e. signature and other
national symbols i.e. the national anthem, national flag and court of arms..
This is in section 9.
- The immunity of the President from any legal proceedings – Section 143
of the constitution.
- The provision and protection of fundamental human rights (freedom of
speech, freedom of worship, expression).
- Matters relating to governing of marginalized area. (NEP was governed
differently before – Sec 127).
- NB: The above provisions are not repeated anywhere else.

(b) The constitution of Kenya lays foundation on certain matters and then gives
powers to other laws to expand on what has been laid down in the constitution.
The constitution is therefore a primary source and the other laws that expand
on what has been laid down are secondary sources e.g.
- The constitution provides for taxes to provide revenue to government and
then Cap 470 (income tax) becomes a secondary source on how taxes will
be collected.
- The constitution provides for the three arms of government- Parliament to
make laws, executive to enforce laws and judiciary to settle disputes.
Other laws come up and expand on these by making provisions on how
these will be enforced. e.g. Presidential and General elections.
- The other is the administration of land. Other laws will provide on how
land will be administered and registered e.g. Trust land.
- It is a primary source on matters of dual citizenship and nationality. It
provides how the dual citizenship and nationality can be acquired and/or
how they can be lost.
The citizenship Act which is secondary will provide other details on
procedure on acquisition.

(c) Lastly the constitution creates the parliament and gives it power to make or
enact other laws. In this sense therefore the constitution in a grand source of
laws. Had it not provided these, the parliament would not have been there and
 hence the law also. The constitution is therefore the father of the parliament
and the parliament being the father of laws.
Being a grand source and if parliament makes a law contradictory to the
constitution, the constitution will cancel the law which will cease to prevail.
(ii) Legislation –
Legislation simply means a source of law that consists of Acts of many
parliaments which we have been adopted in this country for our application.
The following is the list of legislation as a source of law.
(i) Acts of Kenya parliament. Under this we have subsidiary legislation.
(ii) Acts of the Indian parliament.
(iii) A set of Acts in form of international treaties or conventions which
Kenya has signed.
(iv) A substantial number of the Acts of the UK parliament. They are in
two categories:-
– The scheduled Acts
– Statutes of general applications
(iii) Statutes of general application.
This is an Act of parliament passed to apply to all people in the country
and throughout the country. It is not like a specific Act which only applies on
a section of people in that country but applies to all irrespective of religion or
walks of life without discrimination.
These were applying to all people in England and those imported were
the ones being applied on or before 12th August 1897 (when British decided to
take Kenya and make it its possession). They had seen that Kenya had no laws
and therefore with its promises they brought these laws. This date (12/8/1897)
is known as the Receiption Date.

(iv) Subsidiary Legislation (delegated legislation)

By this we mean rules, orders or regulations or sometimes by-laws made by a person
or an institution other than parliament, on authority given to such as a person or
institution by parliament, through an Act of parliament. They are also part of legislation
as a source of law.
If subsidiary legislation is called orders, regulations or rules it means they have been
made by a minister or some other government officials acting on behalf of the minister.
 If we refer to by-laws it means that such laws have been made by an institution (the
commonest are local authorities) and not by a person. These institutions are like the
Nairobi city council, the university etc. They get permission from parliament.
These are conditions on which these institutions can make by-laws:-
(i) Such person must have been empowered by an Act of parliament to make such
subsidiary legislation. If not whatever he makes will be invalid (it will not be
enforceable).
(ii) The rules or by-laws made must not contradict the Act of parliament that granted
the powers. If there is such contradiction the subsidiary legislation will be invalid
and the parent (parliament) Act will prevail.
(iii) They must not contravene the constitution. If there is such contravention the by-
laws will be invalid.
(iv) Subsidiary legislation must also not contradict the life style of the people of this
country. If they do, they will be invalid.
(v) The by-laws made must be laid before parliament for approval. These can be done
before or after the rules have been put in application. The approval is normally
political. The parliament can disapprove them and if it had been enforced on
people, they express a sincere apology.
NB: Local authorities, statutory boards, professional bodies like LSK exercise
delegated power to legislate.

Reasons why if has become necessary for parliament to delegate powers of making laws
to other people. (Need for delegated legislation).
(i) Some maters of legislation are so technical and parliament being general (does not
have experts) find it necessary to delegate this power to people who have
necessary technical knowledge to draft it to make them provide necessary details.
(ii) Parliament has no time to make all the laws and their details so delegation saves
them from this work.
(iii) Urgency. It becomes sometimes so urgent and it might not be in session or if in
session it might be busy.
(iv) Flexibility. The parliamentary procedure of making laws is so rigid and time
consuming. Delegation of functions enables the law to be formulated in a flexible
and a simpler way without going through the normal procedure of 1 st reading , 2nd
reading etc.
 (v) Future difficulties are better dealt with delegated legislation especially when new
schemes are introduced e.g. service charge.

(v) The principles of common law of England and the Doctrines of equity.
Together with the statutes of general application these two were received on the
receiption date. These two must apply in Kenya under the following conditions:-
(a) They don’t contradict the constitution of Kenya which is supreme.
(b) They apply in the form in which they were when they were received. However,
courts have continued to introduce new changes after the reception date.
(c) It must agree with our life style. In the case of Amkaya vs Rep (1917); Amkaya
was arrested after stealing and was charged under the stock theft ordinance Act of
1903. He had hidden the cattle and it was only the wife who knew where they
were. There was no witness and the wife was to give evidence. Under the common
law marriage means a voluntary coming into contract. The judge described their
marriage as not marriage and hence not a wife under the common law and she
could give evidence meaning that all African marriages were not marriages – that
all African children were bastards. This was changed in 1967 to be marriage is
marriage under any style. This was not agreeing with our life styles.
The common law and doctrines of equity are “unwritten” laws, meaning
that they are not contained in one comprehensive document but are scattered in
many documents. They are found in (1) law reports (2) Learned textbooks
(3) Some are in the statutes of general application or Acts of parliament.

Common Law
Common law means the ancient customs and traditions of the people
of England which were practiced throughout ages and eventually become
recognized by the courts of law under the body of common law. These were 3
courts in England responsible for recognizing and formulation of the common
law.
- The court of common pleas
- The Exchequer
- The King’s (or Queen’s) bench.
 The King used to send members of these courts to settle disputes
outside and by solving these disputes, these courts developed a definite body
of law known as common law.
 For punishment they only awarded damages to the person who had been wronged
i.e. payment of money. It was the only remedy.
From 13th century problems started to arise that the common law was inadequate
because of their manner of judgments – damages were not enough. For this reason
King James around 13th century made a proclamation (or an order) if any person felt
that he had not received full justice he would make a personal appeal to the king
himself. He received so many appeals that he was unable to solve them and said that
they should be taken to the Lord chancellor. He also found them too many and set up
to committee of chancellors to hear the many appeals.
They also found them so many and decided to form the court of chancery (justice).
They were to appeal to this court. It was this court that developed rules which came to
be known as doctrines of equity (rules passed by this court to do justice for those who
did not receive justice from common law). It was this court responsible for drawing
doctrines of Equity.
 Apart from the above, there was the reason that to petition they had to go through
writs which were expensive and time wasting which was the complicated. People
found it more useful to go to the court of chancery for justice.
 Even if one succeeded the damages given were very inadequate. The court of
chancery came in and developed additional remedies for damages to supplement
what the common law had done.
 If a poor man happened to bring a V.I.P in the courts of law, the VIP used to corrupt
the court and the pauper would end up in jail. For this the court of chancery grew
up to do more justice-it was not corrupted – it developed the doctrines of equity.
Equity
Equity means natural justice, the justice of God. The doctrines of equity means a
branch of English law containing rules and principles of natural justice.

(vi) The case law of Judicial precedent

Case law means rules of law which courts passed in their judgments or decisions. It consists
of the various rules of law in many judgments passed in courts. The rules of law have grown
to a district body called case law, because of the maxim stare decisis stand by your previous
decisions).
Stare decisis is a command which courts have imposed on themselves that before deciding a
present case a court must look into the past and if there is any past case containing a rule of
law which can be applied in the settlement of the present case.
The cases of the past which contain these rules to which repeated references are made are
called precedents. Precedents are only made by the superior courts – subordinate courts only
refer to these precedents to arrive at their decisions. The precedents of the superior courts are
binding on themselves and those below.
All foreign cases (decisions) are only persuasive to Kenya courts and are not in anyway
binding. If anybody therefore wants a Kenya court to apply a rule of law in a foreign case, he
must persuade the court to accept that rule. If a Kenyan court is persuaded and it applies a
foreign decision, that decision becomes a precedent by adoption.

(vii) The African Customary Law

The Judicature Act cap 8 says in section 3 (2) “The high court and all subordinate courts
shall be guided by African customary law in civil cases in which one or more of the parties is
subject to it or affected by it, so far as it is applicable and is not repugnant to justice and
morality or inconsistent with any written law and shall decide all such cases according to
substantial justice without undue regard to technicalities of procedures and without undue
delay”.
This section is the one which consists the conditions on which customary law is to apply.
(Repugant means primitive and against civilization)
1. When a court of law is applying customary law it should ignore rules of
procedure which courts should apply in other laws. This tends to scare the
parties and therefore make it difficult to stage their cases.
2. Courts have been urged to decide matters on African customary law
immediately (undue delay) unlike in others.
3. Customary law can be argued or applied in certain courts and not all
courts. Cannot be referred to Kadhis’, industrial or appeal court. Unless the
Chief Justice feels that a serious point of law is involved and therefore
refer to appeal court.
4. Can apply only in civil cases. Cattle rustling is a criminal case like any
other. However some are tolerated e.g. Maasai selling or carrying simis.
 5. Customary law only applies only if the parties subject to it or affected by it
agree that they apply it. E.g. A white man marrying an African required to
prepare the local brew and slaughter a ram traditionally (Case Arthur Vs
Mumbi). Arthur was unable and Mumbi sued claiming that the man had
failed to apply the customary law after he had accepted it to apply.
6. Will only apply if it is not contrary to any written law. (i.e. the constitution
or an Act of parliament).
7. Customary law will be allowed to apply if not repugnant to morality and
justice.
8. For African customary law to apply the parties that want to rely on it must
prove beyond any reasonable shadow of doubt that the customary law in
question exists and its well known. (e.g. Kimni vs. Gikanga’s squatter
case).

(viii) Islamic Law

Islamic law is the law based on the Holy Koran and the teachings of the Prophet Mohammed
as explained in his sayings called “Hadith”.
Islamic law is applicable in Kenya under section 5 of the Kadhis’ courts Act 1967 when it is
necessary to determine questions of Muslim law relating to personal status, marriage,
divorce, or inheritance in proceedings in which all the parties profess the Muslim religion.