SOURCES OF LAW
To provide the candidate with a broad understanding of the Sources of Laws of Kenya: The Constitution
Statutes of General Application in force in England on 12th August 1897. Substance of Common Law and doctrines of equity.
African Customary Law.
Judicial Precedent (Case Law).
The term sources of law literally means where rues of law are found. This chapter describes the origins of the rules and principles which constitute the law applicable in a country at a given time. In other words the materials from which rules of law are developed. KEY DEFINITIONS
Bill: - a draft law or legislation
Delegated legislation: - law made by parliament indirectly
Ultra vires: - Latin term which means “beyond the powers” Common law: - a branch of the law of England which was developed from customs, usages and practices of the English people Stare decisis; - Latin term which means “the decision stands” Precedent: - An earlier decision of a court
This chapter has shown its importance in the industry first by way of hierarchy of laws. It is this particular hierarchy that is used when there is a conflict of laws in courts. Cases like the S.M Otieno case can hold proof to this. The law making process described is also the same procedure used in parliament when making laws. SOURCES OF LAW
The phrase source of law literally means where rules of law are found. However, the phrase has been used in a variety of senses. It has been used to describe; i. The origins of the rules and principles which constitute the law applicable in a country at a given time. ii. The source of force or validity of the various rules or principles applicable as law in a country. iii. The materials from which rules of law developed.
iv. The factors which influence the development of the rules of law.
Hence the phrase sources of law have been used to describe the legal, formal, historical and material sources of law. The various sources of law of Kenya are identified by:-
1. Judicature Act
3. Hindu marriage and Divorce Act
4. Hindu Succession Act
5. Kadhis Court Act.
Sources identified by the Judicature Act.
1. The Constitution
2. Legislation (Act of Parliament) (Statutes)
3. Delegated legislation
4. Statutes of General Application
5. Common law
7. Case law or (judge – made law)
8. Africa Customary law
Sources identified by the Constitution and the Kadhis Court Act. -Islamic law
Sources identified by the Hindu Marriage and Divorce Act1 and The Succession Act2. -Hindu law
DIAGRAMMATIC REPRESENTATION OF THE SOURCES OF LAW OF KENYA.
Sources of law of Kenya may be classified as:-
1) Written and unwritten sources
2) Principal and subsidiary sources
These are source of law applicable throughout Kenya, they regulate all persons in Kenya. SUBSIDIARY SOURCES
These are sources of law which regulate certain categories of people in Kenya in relation to certain matters e.g. Islamic law
African customary law
1. THE CONSTITUTION
This is a body of the basis rules and principles by which a society has resolved to govern itself or regulate its affairs. It contains the agreed contents of the political system. It sets out the basic structure of government. A Constitution may be written or unwritten. Constitutions may be classified in various ways:-
1. Written and Unwritten
2. Republican and Monarchical
3. Presidential and Parliamentary
4. Rigid and Flexible
The Kenyan Constitution is written. It was enacted by the English parliament in 1963 for purposes of granting Kenya independence. It has been amended many times. Section 3 (1) (a) of the Judicature Act recognizes the Constitution as a source of law of Kenya. It is the fundamental law of the land and prevails over all other laws. It is the supreme law. SUPREMACY OF THE CONSTITUTION
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