1. SOURCES OF KENYA LAW
1.1 A source of law is the origin of the rule, which constitutes a law, or legal principle. The phrase `sources of Kenya law' therefore means the origin of the legal rules which constitute the law of Kenya.
The various sources of law of Kenya are identified by the Judicature Azt, Kadhis Court Act, the Constitution, Hindu Marriage and divorce Act and the Hindu Succession Act.
1.2 The Judicature Act Cap 8, Laws of Kenya
The sources of Kenya law are specified in the Judicature Act 1967, S.3(1) of which states that the jurisdiction of the High Court, the Court of Appeal and all subordinate courts shall be exercised in accordance with:
(i) the constitution;
(ii) subject thereto, "all other written laws", (including certain Acts of Parliament of the United Kingdom which are cited in Part I of the Schedule to the Act), and
(iii) subject thereto and so far as the (aforesaid) written laws do not extend or apply:
(a) the substance of the common law;
(b) the doctrines of equity, and
(c) statutes of general application in force in England on 12th August 1897.
S.3 (2) states that "the High Court, the Court of Appeal 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 or affected by it, so far as it is applicable and is not repugnant to justice and morality or inconsistent with any written law".
1.3 The Kadhi's Courts Act 1967
Section 5 of the Kadhi's Courts Act provides that a Kadhi's Court shall have and exercise jurisdiction in matters involving the determination of Muslim Law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion. This provision constitutes Muslim Law a source of Kenya law for the specified purposes.
1.4 The Hindu Marriage and Divorce Act 1960, S.5 (1) provides that a marriage between Hindus may be solemnized in accordance with the customary rites and ceremonies of either party thereto.
The provision constitutes Hindu custom a source of Kenya law for the specified purposes.
1.5 The Legal Pyramid
The sources of Kenya law mentioned above may be summarised with the aid of the following diagram or "legal pyramid":
The sources of Kenya law consist of
(a) written laws, and
(b) unwritten laws.
1. The unwritten laws are derived, generally speaking, from the customs of the ethnic groups which constitute Kenya's indigenous population and the rules or rites of Islam and Hinduism.
There is nothing strange or peculiar about this situation. In England, for example, the general customs of the English people constitute a major source of English law which is known as the common law. The principles of Christianity have also made some contribution to the development of English law, especially family law.
2. A written law is defined by the Interpretation and General provisions Act as:
(a) an Act of Parliament for the time being in force (other than the Constitution);
(b) an applied law; or
(c) any subsidiary legislation for the time being in force.
1.6 STATUTE LAW
This is an Act of Parliament. This is law made by parliament directly in exercise of legislative power conferred upon it by the constitution.
Section 46(5) of the Kenya Constitution states that "a law made by Parliament shall be styled an Act of Parliament".
An Act of Parliament begins as a Bill, which is the draft of law that Parliament intends to make. Section 46(1) of the constitution states that "the legislative power of Parliament shall be exercisable by Bills passed by the National Assembly".
Types of Bills
A Bill may be:
(i) A Government Bill, if it is presented to Parliament by the Government with a view to its becoming a law if approved by Parliament.
(ii) A Private Members' Bill if it is presented to Parliament by some members, in a private capacity and not on behalf of the Government.
Bills may also be divided into Public Bills and Private Bills.
(a) A Bill, whether a Government Bill or a Private Members' Bill, is a Public Bill if it seeks to alter the law throughout Kenya. An example is the abortive Marriage Bill, 1979, whose aim was to introduce a uniform marriage law for all Kenyans irrespective of their racial, religious or ethnic differences.
(b) A Private Bill if it does not seek to alter the general law but rather to confer special local powers. An example is where a local authority such as a Municipal Council requires power to purchase land compulsorily.