Application of African Customary Law in Kenya

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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 African customary law was incorporated in our laws today even after colonization by the British. In England, customary law formed the basis for the emergence of common law system. This is because the common law courts were enforcing the law that is common in a particular area and the decisions of those were followed thereby creating precedents. Common law is to a great extent the child of custom. Judicial precedents and legislation evolved as a new way of creating new customs. The English legislature did not start as a law making body. Its original role was that of an advisory body with limited judicial functions. Its role was to evaluate and state that this is law much as what the courts do today. This is why the house of lords is both the parliament and the court of law. In those initial stages the legislative role of Parliament was negligible and it later took over the task of legislating the law. Therefore the common law is the product of customary law. Blackstone describes the common law as the common custom of the realm in the 16th century. In modern time custom has been subordinated to common law especially in England. Tests have been evolved to determine the acceptability of custom in the area of customary law as opposed to the conventional custom. One of the tests is that it must have existed from time immemorial. In England it must go back as far as 1189 although we cannot use this age in determining the custom. HISTORY OF AFRICAN CUSOMARY LAW IN KENYA

With regard to the pre-colonial period, before arrival of the Europeans indigenous legal institutions was the law. They were customary in origin and type. They were not uniform due to ethnic groupings. They were enormous in structure of the law and contents. The variations were brought about by different stages of economic and political development, different social and kinship systems, different religious beliefs and different cultural practices of the society. During the colonial days customary laws were...
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