Understanding the sources of law in Kenya is crucial for anyone engaged in the legal field, from lawyers to law students and justice seekers. These sources form the foundation upon which the Kenyan legal system is built. This blog post will delve into the Primary, Secondary, and Customary Sources of Law in Kenya.
The Kenyan Legal System: An Overview
Kenya is a Commonwealth country with a common law system. Kenya's legal system is based on a complex structure of sources, each playing a vital role in shaping the country’s laws and governance.
Historical Context
The territory of what is now Kenya did not exist before British colonization. Prior to 1895 (the year Kenya was declared a protectorate of the British Empire) ‘Kenya’ had a rich variety of autonomous communities or social formations with distinct languages and customs. With the onset of colonialism, there arose a need for a legislative and administrative system to govern the inhabitants.
For ease of administration, the British settlers imported laws and their system of governance from Britain, and British laws which had been codified in India, to apply to the East African Protectorate. These laws at the onset, were mainly for the benefit of the settlers, and were applied without regard to the already existing African customary law/ Traditional Justice systems.
Sources of Law
The Kenyan legal system traces its origins to the British Common law system.
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- The Constitution: The Constitution, which is the supreme law of the land, taking precedence over all other forms of law, written and unwritten. If any other law is inconsistent with it, the constitution prevails, and the other law, to the extent of its inconsistency, is void.
- Written Laws: All other written laws, including Acts of Parliament, which are passed by parliament and also include subsidiary legislation, that is, laws made under the authority of an Act of Parliament.
- English Statutes: English statutes of general application passed before 12 August 1897 (the reception date), are law in Kenya, unless a Kenyan statute, or a latter English statute made applicable in Kenya, has repealed any such statute. A statute of general application, if repealed by a later English statute would still be law in Kenya. Statutes of general application include public Acts of Parliament, that is, those which apply to the inhabitants at large and which are not limited in their application to prescribed persons or areas. The statutes are also applicable in Kenya in the form that they had at the reception date. Any subsequent amendments of such statutes in England have no effect in Kenya.
- African Customary Law: African Customary Law, which is only applicable in civil cases where one or more of the parties is subject to or affected by it, in so far as it is applicable and is not repugnant to justice and morality or inconsistent with any other law.
- International Law: The general rules of international law also form part of the Laws of Kenya.
The Constitution of Kenya
The Constitution of Kenya, promulgated in 2010, serves as the supreme law of the land. It overrides any other form of law within the country. The Constitution includes provisions on the structure of government, the separation of powers, and the protection of fundamental rights and freedoms.
One of the most significant parts of the Kenyan Constitution is the Bill of Rights, which guarantees fundamental freedoms and protections to all citizens. The Constitution outlines the fundamental rights and freedoms of citizens, as well as the structure and function of government.
Constitutional Reform Process
Kenya has had two substantive Constitutions since gaining independence: The 1963 independence constitution and the Constitution of Kenya, 2010. The 1963 constitution was a result of negotiations between Kenyan political parties and the British colonial government.
It was amended numerous times between 1964- 1990 to ensure the political survival and succession of power by the then ruling party, the Kenya African National Union (KANU). More specifically, the amendments were aimed at consolidating power in the Presidency at the expense of other institutions, mostly the Judiciary.
Fed up by a repressive, one party regime whose tenure was marred by detention without trial and weakening of the doctrine of the separation of powers, Kenyans began agitating for restoration of their fundamental rights and multiparty democracy. Support for change increased significantly and in 1991, the then ruling party, KANU was forced to restore multiparty democracy.
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Kenyans felt that a new, tamper proof Constitution was required to guarantee fundamental rights and remedy historical injustices. In 2009, a Committee of Experts (CoE) was appointed to spearhead delivery of a draft Constitution that would be acceptable to all Kenyans. The CoE submitted a final draft Constitution and a referendum was held on 4 August 2010. The draft Constitution was endorsed by 67% of Kenyan voters .
In many respects, the current constitutional dispensation is a breath of fresh air. The president no longer has the powers to appoint and dismiss at will, the independence of the Judiciary is guaranteed and devolution has brought government closer to the governed.
The transitional provisions contained in the Sixth Schedule to the Constitution of Kenya, 2010 were intended to assist in the transition into the new order, but were limited in time and in operation and were to remain in force for the period provided in order to achieve the aspirations of Kenyans in moving into the new order. These transitional provisions were as much a part of the Constitution and as much an expression of the sovereign will of the people as the main body of the Constitution.
Amending the Constitution
In recent times, there have been attempts to amend the 2010 constitution. Last year on 9 March 2018, President Uhuru Kenyatta and his then chief political opponent, Raila Odinga shook hands and issued a joint presser titled ‘Building Bridges to a new Kenyan Nation’ (BBI). A BBI team was constituted thereafter and charged with the mandate of conducting consultations with citizens on nine key thematic areas. At the time of this publication, the BBI team was yet to issue its final report with findings and reform proposals.
At the same time, Ekuru Aukot’s punguza mzigo (reduce the load)bill to amend the Constitution is undergoing consideration in each of the 47 administrative counties in Kenya, after obtaining the support of over one million Kenyans. Ekuru, a former presidential aspirant, aims to lead Kenyans to a referendum.
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Acts of Parliament
Acts of Parliament are another primary source of law in Kenya. These laws are enacted by the legislative branch and cover a wide range of issues, from criminal law to commercial regulations. The process of enacting an Act begins with the drafting of a bill, which must go through several readings and approvals in Parliament before becoming law.
Acts of Parliament serve to implement the provisions of the Constitution and fill in gaps where the Constitution may not explicitly cover. Most of the laws in Kenya emanate from an act of Parliament. These are introduced into Parliament as Bills.
Law-Making Authority
The authority to make laws in Kenya is primarily vested in two institutions: Parliament and County Assemblies. Parliament makes laws that apply nationally while County Assemblies make laws applying in the respective counties. The Parliament of Kenya consists of the National Assembly and the Senate.
The National Assembly enacts legislation that may cover both National and County issues. The National Assembly also plays an important, but not an exclusive, role in the financial control of Government expenditure. Specifically, it determines the allocation of revenue between the national and county governments.
The Senate represents the counties and serves to protect the interests of the counties and their governments. The Senate considers debates and approves Bills that concern counties. It determines the allocation of revenue among counties and exercises oversight over national revenue allocated to the county governments.
The Bill Process
Most of the laws in Kenya emanate from an act of Parliament. These are introduced into Parliament as Bills. The Bill may be either one concerning the county government (which affects the functions of the county government, relates to election of members of a county assembly or a county executive or affects county finances) or one not concerning county government. A Bill that does not concern the county government is considered only in the National Assembly.
The Bill has to be published in the Kenya Gazette fourteen days before its introduction. It then has its First Reading, which is a formal reading of the title of the Bill. This is followed by a Second Reading, which is an occasion for debate on the general principles of the Bill, after which it is referred to a Committee of the National Assembly for debate and discussion on the detailed provisions.
If the Committee reports favorably to the Assembly, then the Bill has its Third and final reading, where the debate, if any, is restricted to a general statement or reiteration of objections. Upon receiving a bill, the President can assent to the Bill or refer it back to Parliament for reconsideration noting his reservations. Parliament may then amend the Bill in light of the reservations or with a 2/3 majority pass the Bill a second time without amendment. If the latter takes place the President must assent to the Bill within 7 days.
The Senate and National Assembly occasionally tussle in the promotion of devolved government. In early 2013, the Speaker of the National Assembly reversed his decision to refer the division of revenue bill to the Senate. The Supreme Court in an Advisory Opinion held that “the division of Revenue Bill deals with the amount of money that is to be allocated to the Counties from the National Government.
POWERBRIEF - LAW MAKING PROCESS IN KENYA 18TH MARCH 2021
International Law
International law also plays a crucial role in the Kenyan legal system. These international agreements cover various areas, including human rights, environmental protection, and trade. The process of incorporating international treaties into domestic law involves several steps, including the drafting of implementing legislation.
Customary Law
Customary law in Kenya is recognized as a legitimate source of law, particularly in matters of personal law such as marriage, divorce, and inheritance. Customary law is applied in cases where the parties involved are subject to it, and it is not repugnant to justice and morality or inconsistent with any written law.
Although customary law is not formally recognized as a primary source of law, it plays an important role in the country’s legal system, particularly in areas such as family law and property rights. In some cases, customary law can be used to challenge formal laws in Kenya, particularly if they are deemed to be in conflict with the rights and traditions of certain communities.
While customary law is an essential part of the legal system, it is subject to limitations.
Judicial Precedent
Judicial precedent, or case law, is another significant source of law in Kenya. The doctrine of stare decisis, meaning "to stand by things decided," ensures that lower courts follow the rulings of higher courts. Case law helps to interpret and apply statutory and constitutional provisions, filling in gaps where the written law may be silent or ambiguous.
Other Sources of Law
The sources of law in Kenya are diverse and multifaceted, encompassing the Constitution, Acts of Parliament, international treaties, and customary law. Each of these sources plays a critical role in shaping the legal landscape and ensuring justice and fairness in the country.
- Reports of cases
- Academic writings
- Government publications
Kenya Law Reports: A Historical Overview
Kenya's first output of law reports was in the form of volumes under the citation E.A.L.R ('"East African Law Reports'"). They were first published between 1897 and 1905. Seven of these volumes were compiled by the Hon Mr Justice R. W.
The 1922-1956 period saw the emergence of some twenty-one volumes of the Kenya Law Reports (under the citation K.L.R). Then came the period covering 1934 to 1956 which saw the birth of the famous Court of Appeal for Eastern Africa Law Reports (E.A.L.R). These reports comprised twenty-three volumes altogether which were also compiled by puisne judges and magistrates, a Registrar of the High Court and a Registrar of the Court of Appeal for Eastern Africa. These volumes reported the decisions of the then Court of Appeal for Eastern Africa and of the Privy Council.
The East Africa Law Reports (cited as E.A.) were introduced in 1957 and were published in nineteen consecutive volumes until 1975. These reports covered decisions of the Court of Appeal for East Africa and the superior courts of the constituent territories, namely, Kenya, Uganda, Tanzania, Aden, Seychelles and Somaliland. They were published under an editorial board consisting of the Chief Justices of the Territories and the presiding judge of the Court of Appeal for Eastern Africa.
The period before the resumption of the East Africa Law Reports saw sporadic and transitory attempts at law reporting. Firstly, with the authority of the then Attorney-General, six volumes named the New Kenya Law Reports covering the period between and including the years 1976 to 1980 were published by the East African Publishing House. These reports included the decisions of the High Court and Court of Appeal of Kenya and were compiled by the Late Hon Mr Justice S. K. Sachdeva and were edited by Mr Paul H Niekirk and the Hon Mr Justice Richard Kuloba, a judge of the High Court of Kenya.
Later, two volumes of what were known as the Kenya Appeal Reports were published for the period 1982-1992 by Butterworths, a private entity, under the editorship of The Hon Chief Justice A.R.W. Hancox (hence the pseudonym "Hancox Reports") who had the assistance of an editorial board of seven persons.
Law reports relating to special topics have also been published. Ten volumes of the Court of Review Law Reports covering the period 1953 to 1962 and including the decisions on customary law by the African Court of Review were published by the Government Printer. There was no editorial board and it is not known who the compilers of these reports were.
The Role of the Executive and Judiciary
The Executive is the arm of government that implements government laws and policies, a role neither performed by the Judiciary nor the Legislature. It oversees, coordinates and administers over the country to ensure all systems run well.
The judiciary consists of the Courts and all officers of the Courts including, the Chief Justice, the Attorney General, Judges and Magistrates. It is the highest Court in Kenya. It has only appellate jurisdiction, in both civil and criminal cases, it has no inherent jurisdiction. It is presided over by the Judges of Appeal, who are appointed by the President.
Challenges and Technological Innovation
Kenya’s legal system faced a critical challenge due to the lack of revision of legislation that had not been comprehensively revised since 1995. To address this critical issue of the availability of revised laws, the Attorney General of Kenya mandated the National Council for Law Reporting (Kenya Law) to prepare and publish an Annual Supplement, a compilation of the revised version of Kenya’s laws.
Recognising the need for specialised expertise, Kenya Law turned to Laws.Africa for assistance. Kenya Law, with the technical expertise of Laws.Africa, embarked on a project to digitise and consolidate all the revisions of Kenya’s laws, updating them from 1995 to the present. This initiative culminated in 2024 in the launch of the Twenty-fourth Annual Supplement to the Laws of Kenya, a transformative milestone in the nation’s legal landscape.
The collaboration between Laws.Africa and Kenya Law, facilitated by Indigo Legislation Studio, has been transformative for Kenya’s legal system. The Twenty-fourth Annual Supplement to the Laws of Kenya was successfully launched at the beginning of 2024, providing a comprehensive and up-to-date legal framework.
Navigating the Kenyan Legal System
When navigating the complex legal landscape in Kenya, it’s essential to understand the different sources of law that govern our country. In reality, the application of these sources of law can be complex and nuanced.
Understanding the sources of law is essential for practicing law in Kenya. By knowing the primary, secondary, and customary sources of law, lawyers can provide accurate and effective legal advice to their clients.
To determine the applicable law in a particular case, you need to consider the relevant sources of law, including the Constitution, statutes, and customary law.
If you’re facing a legal issue or need guidance on navigating Kenya’s legal system, it’s essential to consult with a qualified lawyer who can provide expert advice and representation.
Table: Sources of Law in Kenya
| Source of Law | Description | Examples |
|---|---|---|
| Constitution | Supreme law of the land | Bill of Rights, Structure of Government |
| Acts of Parliament | Laws enacted by the legislative branch | Treaties and agreements |
| Court judgments | Decisions made by the courts | Law reports |
| Customary Law | Traditional practices and norms | Traditional dispute resolution mechanisms |
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