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Legal Systems Assignment

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6 views

Legal Systems Assignment

Uploaded by

thushmufasa
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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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Download as DOCX, PDF, TXT or read online on Scribd
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1

Wambui Isaac Thuo

LAW/M/3529/09/24

KLS 123: Legal Systems and Methods

QUESTION 1
2

Kenya integrates international law into its domestic legal framework through
constitutional provisions and judicial application. Article 2(5) of the Constitution of
Kenya provides that “the general rules of international law shall form part of the law
of Kenya.”1 Article 2(6) states that any treaty or convention ratified by Kenya
automatically becomes part of Kenyan law. 2
The case of Mitu bell Welfare Society v Kenya Airports Authority underscores the
role of international law in domestic jurisprudence. In this case, the Supreme Court
highlighted the application of environmental law principles derived from
international frameworks to address socio-economic rights issues. 3
Ian Mwiti and Victoria Miyandazi argue that Kenya’s reliance on treaties such as the
African Charter on Human and Peoples' Rights exemplifies judicial efforts to align
domestic practices with international obligations. 4
QUESTION 2
The History of Kenya’s Legal System
Kenya’s legal system has evolved over centuries, influenced by customary
practices, colonial administration, and post-independence reforms.
Pre-Colonial Period: Customary law governed pre-colonial Kenyan societies. It was
unwritten, community-specific, and emphasized restorative justice, with disputes
resolved by councils of elders.5
Colonial Period (1895–1963): The British established a formal legal system,
introducing the East Africa Order in Council of 1897, which applied English common
law and statutes of general application to Kenya. 6 While customary law was
recognized, its application was subordinate to statutory provisions, creating a dual
legal system.7
Post-Independence Period (1963–2010): At independence, Kenya adopted a
constitution that retained elements of British law while allowing the gradual
integration of customary law.8 Reforms during this period aimed to unify the legal
system and address historical inequities.
1
Constitution of Kenya (2010), article 2(5).
2
Constitution of Kenya (2010), article 2(6).
3
Mitu-bell Welfare Society v Kenya Airports Authority, Supreme Court of Kenya (2016) eKLR.
4
Ian Mwiti and Victoria Miyandazi, ‘Application of international law in Kenya’s legal system’ 6 Kabarak Journal of
Law and Ethics (2019) 42.
5
Constitution of Kenya (2010), article 159(2)(c).
6
East Africa Order in Council (1897), article 17.
7
Humphrey Sipalla, ‘Kenya’s legal evolution’ 4 Kabarak Journal of Law and Ethics (2019) 95.
8
Constitution of Kenya (1963), chapter 2.
3

The 2010 Constitution: The promulgation of the 2010 Constitution marked a


turning point in Kenya’s legal history. It recognized customary law under Article
159(2)(c), provided it does not contravene constitutional principles. 9 The
Constitution also introduced a progressive Bill of Rights, strengthened judicial
independence, and embraced international law.
QUESTION 3
The Use of Custom as a Source of Law in Kenya’s Legal System
Customary law remains a significant source of law in Kenya, particularly in personal
law matters such as marriage, succession, and land disputes. 10 Article 159(2)(c) of
the Constitution recognizes customary law, provided it does not conflict with the
Constitution or statutory provisions. 11
Kimani v Gikanga (1965)
This case established the requirements for applying customary law in Kenyan
courts. The High Court held that customary law must be proven through evidence
unless it is widely recognized.12 Furthermore, it must align with principles of justice
and public policy.
SM Otieno Case (1987)
In this landmark case, a dispute arose over the burial site of SM Otieno. The High
Court upheld Luo customary law, which dictated burial in ancestral land, despite
opposition from his widow.13 The case emphasized the significance of customary law
in personal disputes but highlighted tensions between customs and statutory laws.
Customary law continues to play a vital role in Kenya’s legal framework, bridging
the gap between statutory law and community practices.

9
Constitution of Kenya (2010), article 159(2)(c).
10
Kimani v Gikanga, Civil Appeal 10 of 1965, Judgment of the High Court (1965) eKLR.
11
Constitution of Kenya (2010), article 159(2)(c).
12
Kimani v Gikanga, Civil Appeal 10 of 1965, eKLR.
13
SM Otieno Case, Civil Case 33 of 1987, Judgment of the High Court (1987) eKLR.

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