(c) Of the Judicature Act.

However, only the substance of common law and the doctrines of equity are recognized. Their application by Kenyan courts is further qualified. A court of law can only rely on Common law or equity as a source of law:

1. In the absence of an act of parliament.

2. If it is consistent with written law, including the Constitution.

3. If it was applicable in England on 12/08/1897,

4. If the circumstances of Kenya and its inhabitants permits.

5. Subject to such qualifications as those circumstances may render necessary.

AFRICAN CUSTOMARY LAW

African customary law may be described as the law based on the customs of the ethnic groups which constitute Kenya�s indigenous or African population.

Section 3(2) of the Judicature Act provides as follows:

�The high court and all subordinate courts shall be guided by African customs in civil cases in which one or more of the parties is subject to it or affected by it so far applicable and is not repugnant to justice and morality or inconsistent with any written law, and shall decide all such cases according to substantial justice without undue regard to technicalities of procedure and without any delay.�

For a custom to be relied upon as law, it must have certain characteristics:

1. Reasonableness; A good local custom must be reasonable i.e it must be consistent with the principle of justice. Whether or not a custom is reasonable is a question of facts to be determined by the courts.

2. Conformity with statute law: A local custom must be consistent with parliament made law. This is because parliament is the principle law-making body and has Constitutional power to disqualify the application of any rule of custom.

3. Observation as of right: A good local custom is that which a society has observed openly and as of right, i.e. not by force or by stealth nor at will.

4. Immemorial antiquity: A custom must have been observed since time immemorial. Time immemorial means that no living person can attest as to when the custom did not exist.

The application of African customs is however, limited as follows: 

a) The courts are to be guided by African customary law. This provision gives judge/magistrate discretion whether to allow a particular rule of customary law to operate or not. The judge is not bound to apply any rule of customary law and there refuse to apply it if, for example if is repugnant to justice.

In the case of Wambui Otieno � Vs � Joash Ougo and Umira Kager Clan the court of appeal stated that the provision that courts are to be guided by African by African customary law means that courts must have in mind African customary (unless it is repugnant to justice and morality or inconsistent with a written law)

b) The law is applicable only in civil cases The district magistrate�s court act 1967 sec 2 restricts cases to which African customary law may be applied to claims involving any of the following:

I) Land held under customary law

II) Marriage, divorce, maintenance or payment of dowry. III)Seduction or pregnancy of an unmarried woman or girl

IV) Enticement of or adultery with, a married woman

V) Matters affecting status, particularly the status of women, widows and children, including guardianship, custody, adoption and legitimacy. VI)Intestate succession and administration of intestate, so far as it is not governed by any written law.

c) One of the parties must be subject to it or affected by it.

If the plaintiff and the defendant belong to the some ethnic group they are said to be �subject� to the customs of the ethnic group which could then be applied to settle the dispute e.g. a dispute between luos cannot be settled under kikuyu customs.

d) The customary law will only be applied if it is not to repugnant to justice and morality.

In the case of Maria Gisese Angoi � Vs � Marcella Nyomenda Civil Appeal No. 1 of 1981 at Kisii the high court held that:

�The kisii customary law which allows a widow has no children or who has only female children to enter into an arrangement with a girl�s parents and take the girl to be her wife and then choose a man from amongst her late husband�s clan who will be fathering children for her (i.e. the widow) was repugnant to justice because it denied the alleged wife the opportunity of freely choosing her partner.�

e) The customary law will be applied only if it is not inconsistent with any written law.

This is because of the constitution of parliamentary supremacy and the fact that written laws are made by parliament either directly or indirectly. If any unwritten law e.g. African customary is in conflict with a clause in a written law, the unwritten law will cease the force of law from the moment the written law comes into effect.

ISLAMIC LAW

This is the law based on the holy Koran and the teaching of the prophet Mohammed. This law is applicable in Kenya under article 170, clause 5 of the constitution and then section 5 of the Kadhi�s court act 1967 when it is necessary to determine question of Muslims law relating to Personal status, Divorce Marriage and Inheritance And the parties in the case profess the Muslim religion and submit to the jurisdiction of the kadhi�s courts

HINDU CUSTOMS

It is applicable under section 5 of Hindu marriage and divorce act, 1960. Section 2 of the act defines a custom as a rule which, having been continuously observed for a long time, has attained the force of law among a community group or family being a rule that is certain and not unreasonable, or opposed public policy, and in the case of a rule applicable only to a family, has not been discontinued by the family.

CASE LAW AND JUDICIAL PRECEDENT

In deciding cases or disputes, judges of lower courts follow the decision of higher court if a case involving similar facts and points of law comes before them. The principle of stare decisis (Latin meaning to stand on decided cases) or judicial precedent is a legal rule that inquires a judge hearing a case to refer to earlier cases decided by his predecessors in order to find out if the material facts of any of those cases before him

and, in the event of such finding, to decide the case before him in the same way as the earlier case had been decided.

Thus principle was developed by the English courts as a mechanism for the administration of justice which will enable judges to make decisions in an objective or standard manner instead of subjectively and in a personalized manner. The material facts of a case and the decision made by the judge on the basis of those facts are known as ratio decidendi of the case.

The ratio decidendi of a decided case constitutes the legal rule or principle for the future case with similar material facts i.e. the decision is precedent to be followed when deciding such cases (We shall come to this aspect at a later stage � the Administration of the Law)

Precedents may be classified in various ways:

1. Binding and persuasive precedents

2. Original and declaratory precedents

3. Distinguishing precedents

Original precedents

This is a principle or proposition of law as formulated by the court. It is the law-creating precedent.

Declaratory Precedent

This is the application of an existing principle of law in a subsequent similar case.

Binding precedent

This is an earlier decision which binds the court before which it is relied upon. E.g. a precedent of the Court of Appeal used in the High Court.

Persuasive Precedent

This is an earlier decision relied upon in a subsequent case to persuade court to decide the case in the same manner e.g. a High Court decision used in a Court of Appeal, or a decision handed down by a court in another country.

Distinguishing precedent

This is a subsequent decision of a court which effectively distinguishes the earlier precedents.

It is a precedent in its own right.

However, in certain circumstances, a court may refrain from a binding precedent. In such circumstances, the earlier decision is ignored. This is done in the following circumstances:

1. Distinguishing; This is the art of showing that the earlier decision and the subsequent case relate to different material facts. This enables a judge to ignore the precedent.

2. Change in circumstances: A judge may refrain from an earlier decision of a brother judge if circumstances have changed so much so that its application would be ineffectual i.e. the decision no longer reflects the prevailing circumstances.

3. Per incurium: It literally means ignorance or forgetfulness. An earlier decision maybe departed from it if the judge demonstrates that it was arrived at in ignorance or forgetfulness of law, i.e the court did not consider all the law as it existed at the time.

4. Over-rule by statures: If a precedent has been over-ruled by an Act of Parliament. It ceases to have any legal effect as statute law prevails over case law.

5. The earlier decision is inconsistent with a fundamental principle of law

6. If the ratio decidendi of the previous decision is too wide or obscure.

7. If the ratio decidendi relied upon is one of the many conflicting decisions of a court of co-ordinate jurisdiction.

8. Improper Conviction: In Kagwe v R. (1950) it was held that a court could refrain from a binding precedent if its application was likely to perpetuate an incorrect, erroneous or improper conviction in a criminal case. 

Advantages of case law (importance of stare decisis)

1. Certainty and predictability; Stare Decisis promotes certainty in law and renders a legal system predictable. In Dodhia�s Case 1970, the Court of Appeal was emphatic that a system of law requires a considerable degree of certainty.

2. Uniformity and consistency: Case law enhances uniformity in the administration of justice as like cases are decided alike.

3. Rich in detail: stare decisisis rich in detail in that many decisions which are precedent shave been made by courts of law.

4. Practical: Principles or propositions of law are formulated by superior courts on the basis of prevailing circumstances hence the law manifests such circumstances.

5. Convenience: Case law is convenient in application in that judges in subsequent cases are not obliged to formulate the law but to apply the established principles.

6. Flexibility: It is contended that when judges in subsequent cases attempt to distinguish earlier decisions as to justify departing from them, this in itself renders the legal system flexible.

Disadvantages of case law

1. Rigidity: Strict application of stare decisis renders a legal system inflexible or rigid and this generally interferes with the development of law.

2. Bulk and complexity: Since stare decisisis based on judicial decisions and many decisions have been made, it tends to be bulky and there is no index as to which of these decisions are precedent. Extraction of the ratio decidendi is a complex task.

3. Piece-meal: Law-making by courts of law is neither systematic nor comprehensive in nature. It is incidental. Principles or propositions of law are made in bits and pieces.

4. Artificiality in law (over-subtlety): when judges in subsequent cases attempt to distinguish indistinguishable cases, they develop technical distractions or distinctions without a difference. This makes law artificial and renders the legal system uncertain.

5. Backwardlooking: Judges or courts are persuaded / urged to decide all cases before them in a manner similar to past decisions. It is contended that this practice interferes with the ability of a judge to determine cases uninfluenced by previous decisions.

GENERAL RULES OF INTERNATIONAL LAW AND RATIFIED TREATIES

Though not listed in the Judicature Act, international law is a source of Kenyan law. The government is party to a number of international legal instruments and Kenyans can use these as an additional tool for the advancement of their rights. However, it only becomes enforceable in Kenya after they have been incorporated into our domestic legal system by implementing legislation.