The various sources of law of Kenya are identified by:
1. Judicature Act
3. Hindu Marriage and Divorce Act
4. Hindu Succession Act
5. Kadhis Court Act.
Sources identified by the Judicature Act
1. The Constitution
2. Legislation (Act of Parliament) (Statutes)
3. Delegated legislation
4. Statutes of General Application
5. Common law
7. Case law or (judge–made law)
8. Africa Customary law
Sources identified by the Constitution and the Kadhis Court Act
- Islamic law
Sources identified by the Hindu Marriage and Divorce Act1 and The Succession Act2
- Hindu law
Sources of law of Kenya may be classified as:
1) Written and unwritten sources
2) Principal and subsidiary sources
A Constitution is a public document, which regulates the relations between the state and its citizens as well as the relations between the organs of the state.
This is a body of the basis rules and principles by which a society has resolved to govern itself or regulate its affairs. It contains the agreed contents at the political system. A Constitution sets out the basic structure of government.
The Constitution of Kenya is a source of law from which all other laws derive their validity. Any law which conflicts or is inconsistent with the Constitution is void.
Article 2 (4) of the Constitution provides ” any other law is inconsistent with the Constitution, the Constitution shall prevail and the other law shall be to the extent of the inconsistency, he void”.
Any law which is inconsistent can be passed if only the Constitution is first amended by the voles of not less than 65% of all the members of the National Assembly and supported by Presidential assent.
ISSUES ADDRESSED IN THE CONSTITUTION OF KENYA.
The Constitution of Kenya 2010 covers the following matters:
1. That the people of Kenya are the sovereign i.e. all powers are derived from the people
2. The supremacy of the Constitution.
3. The republic. That Kenya is an independent state with an organized government.
4. Bill of rights. It contains the fundamental rights and freedoms
5. Citizenship, i.e. how one acquires and losses citizenship.
6. Leadership and integrity under chapter six of the Constitution i.e. how morals play a central role in leadership.
7. Representation of the people.
8. Separation of powers i.e. how the three organs of the state operate under different heads. This includes; the Legislature, Executive, and the Judiciary.
9. Devolved governments. There is a central and county government.
10. Matters of public finance.
11. Amendment of the Constitution.
Supremacy of the Constitution
• Supremacy of the Constitution is provided for under Article 2.
• All other sources of law derive their validity from the Constitution and are therefore required to be consistent with all provisions of the constitution
• Any source of law if inconsistent with the Constitution is null and void to the extent of its inconsistency.
• Any act or omission in contravention of the Constitution is invalid.
• The Constitution is the supreme law of the Republic and binds all persons and all State organs at both levels of government.
• No person may claim or exercise State authority except as authorized under the Constitution.
• The validity or legality of the Constitution is not subject to challenge by or before any court or other state organ.
• The Constitution is also supreme since it outlines the governing structure of a country and defines the various organs of the government.
• It gives the functions of the various arms of the government and clearly indicates the separation of powers.
• The Constitution establishes highest office in the land i.e. office of the President and grants the occupant power as head of state and government.
• The Constitution provides the fundamental rules and freedoms of individuals and guarantees their protection.
• It provides procedure of its amendment within itself.
LEGISLATION / ACTS OF PARLIAMENT
Legislation is the process of law making through Parliament or any other body specially constituted for the purpose. Legislation can be direct or indirect. Direct legislation is the law making process by Parliament. Law made by Parliament is known as a statute or an Act of Parliament. Indirect legislation is where an individual makes law through powers derived from the statute or Act, known as an Enabling Act. This Is referred to as delegated legislation e.g. by-laws made by local authority. In Kenya, Parliament is the supreme law making body of the country as stipulated in the Constitution.
The law making process begins by Bills being passed by the National Assembly.
A Bill is a draft of a proposed Act of Parliament. When a Bill has been passed by the National Assembly then it is presented to the President for his assent. Once the assent is given, it becomes law and is now called an Act of Parliament or statute.
Types of Bills
Bills may be classified total
a) Public Bills
b) Private Bills
c) Private Member’s Bills
Public Bills: Public Bills deal with matters of public policy and their provisions affect the general public. These Bills are introduced by the Minister concerned.
Private Bills: Private Bills are those which are intended to affect or benefit some particular person, association or corporate body.
Private Member’s Bill: Private Member’s Bills is introduced by a private member of Parliament. Such a member must move a motion seeking leave of the House to introduce the Bill. The member is responsible of drafting his own bill.
The passing of a Bill into law
The Bill passes through the following stages to become law
i. First reading
ii. Second reading
iii. Committee stage
iv. Reporting stage
v. Third reading
vi. President’s Assent
Before the first reading, the Bill is published in the Kenya Gazette for information purposes. All bills must be published in the Kenya Gazette to inform the public and parliamentarians of the intended law. As a general rule, a Bill must be published at least 14 days before introduction to the National Assembly. However, the National Assembly Is empowered to reduce the number of days.
First reading: Under this stage, the clerk reads out only the title of the bill. No debate or vote takes place here. After the first reading the date for the second reading is fixed. If the Bill is approved at this stage, then it is printed and circulated among the members of Parliament to enable them prepare for a debate of this Bill. This Is the Introductory stage of law making.
Second reading: This is the most important stage of the bill. At this stage the Minister or the member in charge of the Bill explains the main feature of the Bill. A debate takes place and the members of the house are allowed to participate in the debate.
Committee stage: It the bill is passed at the second reading, then it moves to the committee stage. Here the details of the various aspects contained in the bill are analysed and scrutinized by the committee of the whole house or a select committee which consists of some selected members of the house.
Report Stage: After scrutiny and analysis at committee stage, the report of the same is submitted to the house. If any amendments are made at the committee stage, the same are debated again, then the bill moves to the third reading if approved
Third reading: Here there are no much debates. A final vote is given after minimal debate, and if approved, the bill is said to have been passed
President’s Assent: A bill passed by the National Assembly does not become law until the President gives his assent. The President may refuse to give his assent if in his opinion the bill does not serve the best interest of the people. A bill becomes a law as scan as it gets the President’s assent.
PRESIDENT’S REFUSAL TO ASSENT TO THE BILL.
1. Within fourteen days after receipt of a Bill, the President shall assent to the Bill; or refer the Bill back to Parliament for reconsideration by Parliament, noting any reservations that the President has concerning the Bill.
2. If the President refers a Bill back for reconsideration, Parliament may, following the appropriate procedures under this Part -amend the Bill in light of the President’s reservations or pass the Bill a second time without amendment.
3. If Parliament amendeds the Bill fully accommodating the President’s reservations, the appropriate Speaker shall re-submit it to the President for assent.
4. Parliament, after considering the President’s reservations, may pass the Bill a second time, without amendment, or with amendments that do not fully accommodate the President’s reservations, by a vote supported– by two-thirds of members of the National Assembly;
and two-thirds of the delegations in the Senate, if it is a Bill that requires the approval of the Senate.
5. If Parliament has passed a Bill under clause (4)– the appropriate Speaker shall within seven days re-submit it to the President; and the President shall within seven days assent to the Bill.
6. If the President does not assent to a Bill or refer it back within the period prescribed in clause (1), or assent to it under (5)(b), the Bill shall be taken to have been assented to on the expiry of that per
Statute law legislation is a principal source of law applicable throughout Kenya. It must be consistent with the Constitution. It is the most important source of law.
Advantages of Statutes Law
1. Democratic: Parliamentary law making is the most democratic legislative process. This is because parliaments the world over consist of representatives of the people they consult regularly. Statute Law, therefore, is a manifestation of the will of the people.
2. Resolution of legal problems: Statute Law enables society to resolve legal problems as and when they arise by enacting new statutes or effecting amendments to existing Law.
3. Dynamic: Statute Law enables society to keep pace with changes in other fields e.g. political, social or economic. Parliament enacts statutes to create the necessary policies and the regulatory framework.
4. Durability: Statute Law consists of general principles applicable at different times in different circumstances. It has capacity to accommodate changes without requiring amendments.
5. Consistency/Uniformity: Statute Law applies indiscriminately i.e. it regulates the conduct of all in the same manner and any exceptions affect all.
6. Adequate publication: Compared to other sources of Law, statute Law is the most widely published in that it must be published in the Kenya Gazette as a bill and as a Law. Additionally, it attracts media attention.
7. It is a superior source of law in that only the Constitution prevails over it.
Disadvantages of Statute Law
1. Imposition of Law: Statute Law may be imposed on the people by the dominant classes in society. In such a case, the Law does not reflect the wishes of the citizens nor does it cater for their interests.
2. Wishes of M.Ps: Statute Law may at times manifest the wishes and aspirations of M.Ps as opposed to those of the citizenry.
3. Formalities: Parliamentary Law making is tied to the Constitution and the National Assembly standing orders. The Law making process is slow and therefore unresponsive to urgent needs.
4. Bulk and technical Bills: Since parliament is not made up of experts in all fields, bulky and technical Bills rarely receive sufficient treatment in the national assembly, their full implications are not appreciated at the debating stage.
Functions of parliament
1. Controls government spending
2. Critical function
3. Legislative functions
How to make the law making process effective
1. M.Ps should consult constituents on a regular basis.
2. Subdivision of large constituencies.
3. Establishment of offices in constituencies for M.Ps
4. Enhance civic education
5. All Bills ought to be supported by not less than 65% of all MPs so as to become Law.
6. Bills should be widely published e.g. the Kenya Gazette should be made available to larger segments of the society. Bills must be published in newspapers
STATUTES OF GENERAL APPLICATION
Kenyan Law does not define the phrase “Statutes of General Application”. However, the phrase is used to describe certain Statutes enacted by the UK parliament to regulate the inhabitants of UK generally.
These Statutes are recognized as a source of Law of Kenya by Section 3 (1) (c) of the Judicature Act. However, there application is restricted in that they can only be relied upon:
1. In the absence of an Act of parliament of Kenya.
2. If consistent with the provisions of the Constitution.
3. If the Statute was applicable in England on or before the 12/8/1897
4. If the circumstances of Kenya and its inhabitants permit.
a. Infants Relief Act, 1874
b. Married Women Property Act 1882
c. Factors Act, 1889
Statutes of general application that have been repealed in the UK are still applicable in Kenya unless repealed by the Kenyan parliament.
Delegated legislation is also referred to as subsidiary (subordinate legislation). It is Law made by parliament indirectly.
Delegated legislation consists of rules, orders, regulations, notices, proclamations e.t.c. made by subordinate but competent bodies e.g.
1. Local Authorities
2. Professional bodies such as ICPA(K)
3. Statutory boards
4. Government ministers
These bodies make the laws in exercise of delegated legislative power conferred upon them by parliament through an Enabling or Parent Act.
Delegated legislation takes various forms e.g.
1. Local Authorities make by-laws applicable within their administrative area
2. Government ministries, professional bodies and others make rules, orders, regulations, notices e.t.c.
Characteristics of delegated legislation
1. All delegated legislation is made under the express authority of an Act of Parliament.
2. Unless otherwise provided, delegated legislation must be published in the Kenya Gazette before coming into force.
3. Unless otherwise provided, delegated legislation must be laid before parliament for approval and parliament is empowered to declare the delegated legislation null and void by a resolution to that effect whereupon it becomes inoperative to that effect
Why delegated legislation?
Delegated legislation is described as a “necessary evil” or a Constitutional impropriety”. This is because it interferes with the doctrine of separation of powers which provides that the Lawmaking is a function of the legislature.
Parliament delegates Law-making powers to other persons and bodies for various reasons:
1. Parliament is not always in session
2. Parliament is not composed of experts in all fields
3. Inadequate parliamentary time
4. Parliamentary Law-making is slow and unresponsive to urgent needs. Additionally it lacks the requisite flexibility
5. Increase in social legislation
Advantages of delegated legislation
1. Compensation of last parliamentary time: Since members of parliament are not always in the National Assembly making Laws, the Law-making time lost is made good by the delegates to whom legislative power has been given hence no Lawmaking time is lost.
2. Speed: Law-making by government Ministers, Professional bodies and other organs is faster and therefore responsible to urgent needs.
3. Flexibility: The procedure of Law-making by delegates e.g. Government Ministers isnot tied to rigid provisions of the Constitution or other law. The Minister enjoys the requisite flexibility in the Law-making process. He is free to consult other persons.
4. Technicality of subject matter: Since parliament is not composed of experts in all fields that demand legislation, it is desirable if not inevitable to delegate Law-making powers to experts in the respective fields e.g. Government Ministries and local authorities.
Disadvantages of delegated legislation
1. Less Democratic: Compared to statute law, delegated legislation is less democratic in that it is not always made by representatives of the people affected by the law. E.g. rules drafted by technical staff in a government ministry.
2. Difficult to control: In the words of Professor William Wade in his book “Administrative Law” the greatest challenges posited by delegated legislation is not that it exists but that it’s enormous growth has made it impossible for parliament to watch over it. Neither parliament nor courts of law can effectively control delegated legislation by reason of their inherent and operational weakness.
3. Inadequate publicity: Compared to statute law, delegated legislation attracts minimal publicity if any. This law is to a large extent unknown.
4. Sub-delegation and abuse of power: Delegates upon whom law making has been delegated by parliament often sub-delegate to other persons who make the law. Sub-delegation compounds the problem of control and many lead to abuse of power.
5. Detailed and technical: It is contended that in certain circumstances, delegated legislation made by experts is too technical and detailed for the ordinary person.
Unwritten sources of law
Unwritten sources of law apply subject to the written sources. Written sources prevail over unwritten sources in the event of any conflicts.
This is primarily because unwritten law is generally made by a supreme law-making body.
These sources include:
1. Common law
3. Case law
4. Islamic law
5. Hindu law
6. African Customary law.
It may be described as a branch of the law of England which was developed by the ancient common Law Courts from customs, usages and practice of the English people.
These courts relied on customs to decide cases before them thereby giving such customs the force of law. The court of Kings Bench, Court Exchequer and the court of common pleas are credited for having developed common law.
These courts standardized and universalized customs and applied them in dispute resolution.
At first, common law was a complete system of rules both criminal and civil.
The development of the common law is traceable to the Norman Conquest of the Iberian Peninsula. The Romans are credited for having laid the foundation for the development of the common law.
Characteristics of common law
1. Writ System.
2. Doctrine of stare decisis
1. The writ system
At common law, actions or cases were commenced by a writ. There were separate writs for separate complaints. Writs were obtained at the Royal office.
A Writ stated the nature of the compliant and commanded the police officer of the country in which the defendant resided to ensure that the he appeared in court on the mentioned date. Often, police officers demanded bribes to compel the defendant to appear in court and would not compel an influential defendant.
The writ system did not recognize all possible complains and many would be plaintiffs could not access the courts.
It also lengthened the judicial process.
2. Doctrine of stare decisis
Stare Decisis literally means “decision stands” or “stand by the decision.” This is a system of administration of justice whereby previous decisions are applied in subsequent similar cases. At common Law, a judge having once decided a case in a particular manner had to decide all subsequent similar cases similarly.
This made the common Law system rigid. Common Law consists of decisions handed down by courts of law on the basis of customs and usages and may be described as the English Customary Law.
Problems/shortcomings of common law
1. Writ System: Cases at common Law were commenced by a writ issued by the Royal office. There were separate writs for different complaints. However:
a) This system did not recognize all possible complaints and many would be plaintiffs had no access to the courts
b) The writ system encouraged corruption
c) It lengthened the course of justice
2. Rigidity/inflexibility: The common Law courts applied the doctrine of Stare Decisis.This practice rendered the legal system rigid and hence unresponsive to changes.
3. Procedural technicalities: The Common Law procedure of administration of justice was highly technical. Common Law courts paid undue attention to minor points of procedure and many cases were often lost on procedural matters.
4. Delays: The administration of justice at common Law was characterized by delays. Defendants often relied on standard defenses to delay the course of justice. These defenses were referred to as essoins and included; Being out by floods, being unwell or being away on a crusade. If sickness was pleaded, the case could be adjourned for 1 year and 1 day.
5. Non-recognition of trusts: Common Law did not recognize the trust relationship. This is an equitable relationship whereby a party referred to as a trustee, expressly, impliedly or constructively holds property on behalf of another known as beneficiary. At common Law beneficiaries had no remedies against errant trustees and trustees had no enforceable rights against beneficiaries.
6. Inadequate remedies: Common Law courts had only one remedy to offer namely monetary compensation or damages. They could not compel performance or restrain the same.
7. Inadequate protection of borrowers: At common Law, a borrower who failed to honour his contractual obligations within the contractual period of repayment would lose not only his security but the total amount paid.
THE DOCTRINES OF EQUITY
Equity is a set of rules formulated and administered by the court of chancery before 1873 to supplement the rules of common law. This court dealt only those cases where common law either provided no remedy or provided a remedy which was not adequate. Equity therefore is a body of principles constituting what is fair and right.
Origins of equity
Citizens dissatisfied with the decision of the judges of common law often made petitions to the kings in council. The petitions were decided by the king himself or by his council. Due to much work, the king later delegated his function to his lord chancellor (advisor to the king) a clergyman to decide the appeals applying the rules of natural justice and morality.
The petitions to the Lord Chancellor were made on the following grounds:-
1. The common law courts provided no remedy for certain wrongs e.g. trusts were not recognized.
2. The remedies provided in certain situations were not satisfactory e.g. in case of breach of contract, the only remedy available was damages, and specific performances injunctions were not recognized.
3. The common law courts sometimes acted under pressure or influence or bribes of the other party.The remedies granted by equity courts become known as equitable remedies.
Principles of Equity
During the early development of equity the early chancellors acted at their own discretion, but eventually they did follow the decisions of early chancellors. But the 8th century, some firm rules of equity were established which guided later chancellor in deciding disputes. These rules are known as equitable maxims – which are propositions or statement of equitable rules.
The Maxims of Equity include:
1. He who seeks equity must do equity
2. He who comes to equity must come with clean hands
3. Equity is equality (Equality is equity)
4. Equity looks to the intent or substance rather than the form
5. Equity regards as done that which ought to be done
6. Equity imputes an intent to fulfil an obligation
7. Equity acts in personam
8. Equity will not assist a volunteer (Equity favours a purchaser for value without notice)
9. Equity will not suffer a wrong to be without a remedy (Where there is a wrong there is a remedy for it) Ibi jus ibi remedium
10. Equity does not act in vain
11. Delay defeats equity
12. Equity aids the vigilant and not the indolent (Vigilantibus non dorminentibus jurasubveniunt)
The distinction between legal and equitable remedies remains relevant to students of business law; however, because these remedies differ to seek the proper remedy for a wrong one must know that remedies are available.
1. He who seeks equity must do equity
This maxim means that a person who is seeking the aid of a court of equity must be prepared to follow the court‟s directions, to abide by whatever conditions that the court gives for the relief. And this is most commonly applied in injunctions. The court will normally impose certain conditions for granting the injunction.
2. He who comes to equity must come with clean hands
This scenario was summed up in the case of Jones v. Lenthal (1669) as “He who has committed inequity shall not have equity”. There is a limit to this rule.
In some cases the court has the discretion whether to apply this maxim. Limit to the extent that maxim can be applied The limit is this: It is not all unclean hands that will deny a plaintiff his remedy. The conduct must be relevant to the relief being sought.
In Loughran v. Loughran (1934), Justice Brandeis said equity does not demand that its suitors shall have lead blameless lives. We are not concerned with issues of morality. If the breach is a trifle, a small matter, a minor breach, then that in itself should not deny the plaintiff the remedy.
The first maxim deals with now/future, the second deals with conduct in the past.
3. Equity is equality (equality is equity)
In general, the maxim will be applied whenever property is to be distributed between rival claimants and there is no other basis for division.
For example, husband and wife who operate a joint bank account; each spouse may deposit or take out money. Upon divorce, the maxim applies. They share 50-50. The authority is that equity does not want to concern itself with the activities of a husband and wife – to go into the bedroom and make deep inquiries, hence equal division.
Another example relates to trusts. How do you divide the property? Say there are three beneficiaries. Then one of the beneficiaries passes away, i.e. one of the shares fails to vest.
What should accrue to the surviving beneficiaries? Redistribute equally, applying the rule “Equity is equality”.
4. Equity looks to the substance or intent rather than the form
This maxim makes a distinction between matters of substance and matters of form. Equity will give priority to substance (intention) as opposed to form, if there is a contradiction. This maxim is normally applied to trusts. There have been cases where the court has inferred a trust even where the word trust does not appear.
Another illustration is the remedy of rectification of contract, where equity looks to the intention, where intention matters.
This maxim lies at the root of the equitable doctrines governing mortgages, penalties and forfeitures. Equity regards the spirit and not the letter.
Courts of Equity make a distinction in all cases between that which is a matter of substance and that which is a matter of form; and if it finds that by insisting on the form, the substance will be defeated, it holds it to be inequitable to allow a person to insist on such form, and thereby defeat substance.
Thus if a party to a contract for the sale of land fails to complete on the day fixed for completion, at law he is in breach of his contract and will be liable for damages e.g. for delay.
Yet in equity it will usually suffice if he is ready to complete within a reasonable period thereafter, and thus the other party will not be able to avoid performance.
5. Equity regards as done that which ought to be done
This maxim has its most frequent application in the case of contracts. Equity treats a contract to do a thing as if the thing were already done, though only in favour of persons entitled to enforce the contract specifically and not in favour of volunteers.
Agreements for value are thus often treated as if they had been performed at the time when they ought to have been performed. For example a person who enters into possession of land under a specifically enforceable agreement for a lease is regarded in any court which has jurisdiction to enforce the agreement as if the lease had actually been granted to him.
In Walsh v. Lonsdale, the agreement for lease was as good as the agreement itself where a seven-year lease had been granted though no grant had been executed. An equitable lease is as good as a legal lease. Equity looked on the lease as legal the time it was informally created.
In Souza Figuerido v. Moorings Hotel it was held that an unregistered lease cannot create any interest, right or confer any estate which is valid against third parties. However, it operates as a contract inter-parties; it is valid between the parties and can be specifically enforced. The tenant in this case was therefore liable to pay rent in arrears.
6. Equity imputes an intent to fulfill an obligation
If a person is under an obligation to perform a particular act and he does some other act which is capable of being regarded as a fulfilment of this obligation, that other act will prima facie7 be regarded as fulfilment of the obligation.
7. Equity acts in personam
This is a maxim which is descriptive of procedure in equity. It is the foundation of all equitable jurisdictions.
Courts of law enforced their judgments in Rem (against property of the person involved in the dispute), e.g. by writs but the originally equitable decrees were enforced by Chancery acting against the person of the defendant (i.e. by imprisonment) and not in Rem Later, equity invented the alternative method of sequestrating the defendant‟s property until he obeyed the decree.
These methods can still be used where necessary, but other and more convenient methods are often available today.
Although the maxim has lost much of its importance, it is responsible for the general rule that an English court has jurisdiction in equitable matters, even though the property in dispute may be situated abroad, if the defendant is present in this country. This was so held in Penn v. Baltimore where the Defendant was ordered to perform a contract relating to land in America.
However there must be some equitable right arising out of contract, trust or fraud.
8. Equity will not assist a volunteer
Equity favours a purchaser for value without notice. A volunteer is a person who has not paid consideration.
The exception to the application of this maxim is in Trust. In Jones v. Lock (1865) it was stated that the court is prevented from assisting a volunteer regardless of how undesirable the outcome might appear. Equity will therefore not grant specific performance for a gratuitous promise.
9. Equity will not suffer a wrong to be without a remedy
“Ibis jus ibi remedium”: This means that if there is a wrong, there is a remedy for it. He who seeks solace in the arms of equity will not go away broken hearted.
No wrong should be allowed to go unredressed if it is capable of being redressed by equity.
However, not all moral wrongs can be redressed by equity.
The maxim must be taken as referring to rights which are suitable for judicial enforcement, but were not enforced at common law owing to some technical defect.
10. Equity does not act in vain
The court of equity is shy and does not want to be embarrassed by granting remedies that cannot be enforced or issuing orders that cannot be obeyed by the Plaintiff.
11. Delay defeats equity or equity aids the vigilant and not the indolent: (vigilantabus, non dormientibus, jura subveniunt)
A court of equity has always refused its aid to stale demands i.e. where a party has slept on his right and acquiesced for a great length of time.
Nothing can call forth this court into activity, but conscience, good faith, and reasonable diligence. Where these are wanting, the Court is passive and does nothing.
Delay which is sufficient to prevent a party from obtaining an equitable remedy is technically called “laches”.
This maxim, however, has no application to cases to which the Statutes of Limitation8 apply either expressly or, perhaps, by analogy. There are thus three cases to consider-
a) Equitable claims to which the statute applies expressly;
b) Equitable claims to which the statute is applied by analogy; and
c) Equitable claims to which no statute applies and which are, therefore, covered by the ordinary rules of laches.
12. Equity follows the law
The Court of Chancery never claimed to override the courts of common law. “Where a rule, either of the common or the statute law, is direct, and governs the case with all its circumstances, or the particular point, a court of equity is as much bound by it as a court of law and can as little justify a departure from it.
It is only when there is some important circumstance disregarded by the common law rules that equity interferes. “Equity follows the law, but neither slavishly nor always.” If Common law and Equity conflict Equity prevails.
Both Common law and Equity are recognized as sources of law of Kenya
(c) Of the Judicature Act.
However, only the substance of common Law and the doctrines of equity are recognized.
Their application by Kenyan Courts is further qualified. A court of law can only rely on Common law or equity as a source of Law:
1. In the absence of an Act of parliament.
2. If it is consistent with written law including the Constitution.
3. If it was applicable in England on 12/08/1897.
4. If the circumstances of Kenya and its inhabitants permits.
5. Subject to such qualifications as those circumstances may render necessary.
AFRICAN CUSTOMARY LAW
African customary law may be described as the law based on the customs of the ethnic groups which constitute Kenya’s indigenous or Africa population.
Section 3(2) of the judicature act provides as follows:
“The high court and all subordinate court shall be guided by African customary in civil cases in which one or more of the parties is subject to it, or affected by it, so far 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 procedure and without any delay.”
For a custom to be relied upon as law, it must have certain characteristics:
1. Reasonableness; A good local custom must be reasonable i.e it must be consistent with the principle of justice. Whether or not a custom is reasonable is a question of facts to be determined by the courts.
2. Conformity with statute law: A local custom must be consistent with parliament made law. This is because parliament is the principle law-making body and has Constitutional power to disqualify the application of any rule of custom.
3. Observation as of right: A good local custom is that which a society has observed openly and as of right i.e. not by force or by stealth nor at will.
4. Immemorial antiquity: A custom must have been observed since time immemorial. Time immemorial means that no living person can attest as to when the custom did not exist.
The application of African customary is however limited as follows:
a) The courts are to be guided by African customary law.
This provision gives judge/magistrate discretion whether to allow a particular rule of customary law to operate or not. The judge is not bound to apply any rule of customary law and there refuse to apply it if, for example if is repugnant to justice.
In the case of Wambui Otieno – Vs – Joash Ougo and Umira Kager Clan the court of appeal stated that the provision that courts are to be guided by African by African customary law means that courts must have in mind African customary (unless it is repugnant to justice and morality or inconsistent with a written law)
b) The law is applicable only in civil cases
The district magistrate’s court act 1967 sec 2 restricts cases to which African customary law may be applied to claims involving any of the following:
I) Land held under customary law
II) Marriage, divorce, maintenance or payment of dowry.
III) Seduction or pregnancy of an unmarried woman or girl
IV) Enticement of or adultery with, a married woman
V) Matters affecting status, particularly the status of women, widows and children, including guardianship, custody, adoption and legitimacy.
VI) Intestate succession and administration of intestate, so far as it is not governed by any written law.
c) One of the parties must be subject to it or affected by it.
If the plaintiff and the defendant belong to the some ethnic group they are said to be “subject” to the customs of the ethnic group which could then be applied to settle the dispute e.g. a dispute between luos cannot be settled under kikuyu customs.
d) The customary law will only be applied if it is not to repugnant to justice and morality.
In the case of Maria Gisese Angoi – Vs – Marcella Nyomenda Civil Appeal No. 1 of 1981 at Kisii the high court held that:
“The kisii customary law which allows a widow has no children or who has only female children to enter into an arrangement with a girl’s parents and take the girl to be her wife and then choose a man from amongst her late husband’s clan who will be fathering children for her (i.e. the widow) was repugnant to justice because it denied the alleged wife the opportunity of freely choosing her partner.”
e) The customary law will be applied only if it is not inconsistent with any written law.
This is because of the constitution of parliamentary supremacy and the fact that written laws are made by parliament either directly or indirectly. If any unwritten law e.g. African customary is in conflict with a clause in a written law, the unwritten law will cease the force of law from the moment the written law comes into effect.
This is the law based on the holy Koran and the teaching of the prophet Mohammed. This law is applicable in Kenya under article 170, clause 5 of the constitution and then section 5 of the Kadhi’s court act 1967 when it is necessary to determine question of Muslims law relating to Personal status, Divorce Marriage and Inheritance And the parties in the case profess the Muslim religion and submit to the jurisdiction of the kadhi’s courts.
It is applicable under section 5 of Hindu marriage and divorce act, 1960. 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 public policy, and in the case of a rule applicable only to a family, has not been discontinued by the family.