• This is a body of basic rules and principles by which a society has resolved to govern itself or regulate its affairs.
• It contains the agreed content of the political system and the basic structure of government e.g. Executive, Legislature and the Judiciary.
• It can be written or unwritten.
• Section 3 (1) (e) of the Judicture Act recognizes the constitution as a source of law of Kenya. It is the supreme law of the land and prevails over all other laws (Okunda and Another V. R (1970)
Legislation or (statute law)
This is law made by parliament directly in exercise of legislative power conferred upon it by the constitution e.g. Judicature Act, Kadhis Court Act companies Act. It is recognized by section 3(1) (b) of the Judicature Act as a source of law under the phrase:
• Certain Acts of the UK parliament applicable in Kenya.
• Certain Acts of Indian Parliament
• Certain Acts of Legislative council.
• Acts of the parliament of Kenya.
• Delegated legislation: It also referred to as sub-ordinate, indirect or subsidiary legislation.It is law made by parliament indirectly. These are by-laws, orders, rules, regulations, proclamations made by sub-ordinate bodies for example local authorities, professional bodies, Government ministers and statutory bodies in exercise of delegated legislative power conferred upon them by parliament through an enabling or parent Act.
• Statutes of General Application: These are certain statutes enacted by the U.K parliament to regulate the conduct of the inhabitants of the UK generally. They are recognized as a source of law of Kenya by section 3 (I) (c) of the Judicature Act. However their application as a source of law is qualified.
• Common Law: may be described as a branch of the law of England which was developed by the ancient common law courts from the customs, usages and practices of the English people. These courts applied the peoples way of life in the settlement of disputes thereby giving such customs the force of law. It is an unwritten source of law whose application is qualified by the section 3(I) (c) of the Judicature Act.
• Equity: Equity ordinarily means fairness or justice. It is that branch of the law of England which was developed by the various Lord Chancellors courts to supplement the common law. It developed to mitigate the harshness of the common law. Its application is qualified by section 3 (I) (c) of the Judicature Act.
• Case law of judge made law: These are principles or propositions of law made by judge when deciding cases before them which are applied in subsequent similar cases. Judges make law when they formulate or enunciate principles or propositions of law where non- existed or in doubtful situations which are applied in subsequent similar cases. This source is recognized by section 3 (I) (c) of the Judicature Act and has wide application.
• African Customary Law: African customary law is based on customs, usages and practices of the various ethnic groups of Kenya. These customs and usages generally lack universality and so is African Customary Law. A custom embodies a principle a principle of utility or justice. However, not all local customs may be relied upon by court of law in the settlement of disputes. A good local custom must be reasonable consistent with written law and must have been observed openly since time immemorial. It is recognized by section 3
(2) of the Judicature Act.