Application of African Customary Law in Kenya

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Application of African Customary Law in Kenya

By | October 2011
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THE CATHOLIC UNIVERSITY OF EASTERN AFRICA
NAME: WENDY NYAMBURA KARIUKI
COURSE: CLS LEGAL SYSTEMS
LECTURER: MR. JAMES MAMBOLEO
REG. NO: 1019557
DATE: 18-10-2011
FIRST TRIMESTER FACULTY OF LAW

INTRODUCTION

DEFINITION
Customary law is a body of customs and traditions which regulate various kinds of relationships between members in a community. Customary laws are said to be applicable to the extent that they are not repugnant to justice, morality or any other written law. CUSTOM AS A SOURCE OF LAW

Both custom and law are the realization of the measure of society’s insight and ability and also the principles of right and justice. Law embodies these principles in the exercise of its sovereign power while custom embodies its principles as acknowledged and approved by the public opinion of the society rather than by the power of the state. When the state begins to evolve out of the society, the law of the state is often modeled on the custom of the society. Customs are divided into two: 1. Legal custom- its authority is absolute and for that reason it possesses the full force of law, for example the custom preventing re-marriage. If the rule that widows cannot re-marry is absolute custom, the widow knows that she cannot re-marry. 2. Conventional custom- operates directly through the medium of agreements, its authority being conditional to acceptance. In England the term custom is used to refer to legal custom with force of the law while conventional custom refers to usage.

Custom therefore is seen as a source of law in a sense that customary law is generated by customs. The people in a community start by forming uniform practice and by virtue of uniformity it is referred to as custom then the practice gains the force of law by being stuck in the mind of people. CUSTOMARY LAW IN ENGLAND

It is important to look at the development of customary law in England so as to understand how...

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