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Sources of Law

The document outlines the key sources of law in Kenya, including the Constitution, statutes, international law, common law, African customary law, and judicial precedent. It provides details on each source and suggested readings to further understand sources of law in Kenya. Examples of relevant cases are also listed.

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31 views

Sources of Law

The document outlines the key sources of law in Kenya, including the Constitution, statutes, international law, common law, African customary law, and judicial precedent. It provides details on each source and suggested readings to further understand sources of law in Kenya. Examples of relevant cases are also listed.

Uploaded by

wamalwavictor12
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Draft Materials for Lecture 2: Sources of the Law of Kenya

My lectures and course materials, including presentations, tests, outlines, and similar
materials, are protected by copyright law. I am the exclusive owner of the copyright
in those materials I create. You may not reproduce, distribute or display the lecture notes
or recordings or course materials in any other way — whether or not a fee is charged —
without my express written consent. You also may not allow others to do so.
©J Ayamunda 2020

1. Sources of Law

a) The Constitution
b) Other statutes
c) The general rules of international law
d) treaties and/or conventions ratified by Kenya
e) Equity
f) Common law
g) African customary law
h) Judicial precedent

Suggested Readings on Sources of Law

The Constitution of Kenya 2010


The Judicature Act (Cap 8)

C. K. Allen, Law in the Making


P. F. Smith & S. H. Bailey. The Modern English Legal System
Dennis Keeanan, Smith and Keenan’s English Law
H. L. A. Hart, The Concept of Law
Tudor Jackson, The Law of Kenya, An Introduction
Glanville Williams – Learning the Law
Ian R. Macnail – Research in East African Law in 1967 EALJ Vol. 3, No. 1 p. 48

2 Sources and Materials for Lectures on Sources of Law

A. Constitution Article 2. NB: supremacy (Subject to provisions re alteration of


constitution eg by Parliament), hierarchy, etc
B. Judicature Act s3
i) The Constitution
ii) Other written laws
iii) Substance of common law; doctrines of equity; statutes of general
application
Requirements:
 Circumstances and inhabitants to permit
 Qualifications rendered necessary by those circumstances

iv) African Customary Law (ACL)


Requirements:
 Courts shall be guided by ACL
 In civil cases
 Where a party is subject to it or affected by it
 So far as is applicable and is
 Not repugnant to justice and morality
 Consistency with written law
 Put premium on substantial justice NOT procedural
technicalities

C. Magistrate’s Courts Act s2


“claim under customary law” means …

Cases
 I v. I (1971) EA 278
 Karanja v. Karanja (1976) KLR 307
 Kamanza Chiwaya v. Manza Tsuma (Civil Appeal No 8 of 1972)
 Maria Gisege Angoi Vs. Macella Nyomenda (Civil Appeal No. 1 of 1981)
 Virginia Edith Wamboi Otieno v Joash Ochieng Ougo & another [1987] eKLR
 The Earl of Oxford case

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