BBM 106 Notes compiled by Francis Kaburu

1) i) ii) iii) Introduction to Kenyan Law Nature and purpose of law Classification of law Sources of Law

NATURE AND PURPOSE OF LAW According to Salmond, law consists of a body of principles recognised and applied by the state in the administration of justice. Law has also been defined as a collection of binding rules of human conduct prescribed by human beings for obedience of human beings. The best definition is that law is a set of rules and regulations that guide human conduct. Purpo e or Function o! Law i) !ules of law facilitate administration of justice. "t is an instrument used by human beings to achie#e justice. ii) Law assists in the maintenance of peace and order. Law promotes peaceful co$e%istence, that is, pre#ents anarchy. iii) Law promotes good go#ernance. i#) Law is a standard setting and control mechanism. #) &ro#ision of legal remedies, #) &rotection of rights and duties. T"PES AND #LASSIFI#ATION OF LAW !ules of law may be classified as' (ritten and unwritten National and "nternational &ublic and &ri#ate Substanti#e and &rocedural Criminal and Ci#il Written and Unwritten $aw (ritten law refers to rules of law that ha#e been reduced into a written form and codified into a single document. They are embodied in a formal document for e%ample The Constitution of )enya, laws made by parliament statutes). Such laws pre#ail o#er unwritten Law. *n the other hand, unwritten law are rules of law that ha#e not been reduced into written form, or ha#e been reduced into writing but not codified+ embodied in any single document e.g. African Customary Law, "slamic Law, ,indu Law, Common Law, -.uity. Their e%istence must be pro#ed. Nationa$%&unicipa$ and Internationa$ Law National +municipal law refers to rules of law operational within the boundaries of a country. "t regulates the relation between citi/ens and between citi/ens and the state. "t is based on Acts of &arliament, customary and religious practices of the people. "nternational law on the other hand is a body of rules that regulates relations between countries+states and other international persons eg. 0nited Nations. "t is based on international agreements of treaties and customary practices of states and general principles. Pu'$ic and Pri(ate $aw &ublic law consists of those fields or branches of law in which the state has an interest as the so#ereign eg. criminal law, constitutional law, administrati#e law. &ublic law is concerned with the constitution and functions of the #arious organs of go#ernment including local authorities, their relations with each other and with the citi/ens. &ublic law asserts state so#ereignty+power. &ri#ate law in the con#erse consists of those fields or branches of law in which the state has no direct interest as the so#ereign eg. law of contracts, law of tort, law of property, law of succession. "t is concerned with day to day transactions of legal relationships between persons. "t defines the rights and duties of parties Su' tanti(e and Procedura$ $aw Substanti#e law is concerned with the rules themsel#es as opposed to the procedure on how to apply them. "t defines the rights and duties of parties and pro#ides remedies when those rights are #iolated e.g. law of contract, negligence, defamation. "t defines offences and prescribes punishment e.g. &enal Code Cap 12.

BBM 106 Notes compiled by Francis Kaburu

&rocedural law on the other hand consists of the steps or guiding principles or rules of practice to be complied with or followed in the administration of justice or in the application of substanti#e law. "t is also referred to as adjecti#e law e.g. Criminal &rocedure code Cap 34, ci#il procedure Act Cap 56. #ri)ina$ and #i(i$ $aw Criminal law has been defined as the law of crimes. A crime has been defined as an act or omission, committed or omitted in #iolation of public law eg. murder, manslaughter, robbery, burglary, rape, stealing, theft by ser#ant or agent. "ts thus law dealing with offences against the state. Ci#il law on the other hand is concerned with #iolations of pri#ate rights in their indi#idual or corporate capacity eg. breach of contract, negligence, defamation, nuisance, passing off trespass to the person or goods. "ts thus law dealing with offences against indi#iduals. So)e o! t*e Di tinction +etween t*e two are, #I-IL 6 *bjecti#e is remedial i.e. to compensate 5 *ffences against indi#iduals 2 Standard of proof on a balance of probability 7 8urden of proof on plaintiff+claimant &ri#ate indi#iduals are the parties before the court thus 4 case names show two parties e.g. Francis v Ondiek 1 The indi#idual S0-S

#RI&INAL *bjecti#e is penal i.e. to punish *ffences against state Standard of proof beyond reasonable doubt 8urden of proof on prosecutor The State constitutes itself a party to the suite, thus case names show state as party e.g. R v John !9 !epublic) The state &!*S-C0T-S

SOUR#ES OF LAW IN KEN"A A source of law is the origin of the rule, which constitutes a law, or legal principle. The phrase :sources of )enya law; therefore means the origin of the legal rules which constitute the law of )enya. The two principal documents that identify the sources of law in )enya are the <udicature Act and the Constitution. These sources can be listed thus in the order of priority+preference= $ The Constitution $ Statutes $ "nternational Law $ Case Law $ >octrines of common law and e.uity $ African Customary Law $ "slamic Law $ ,indu Law T.E #ONSTITUTION Constitution may be defined as a) Set of rules as to which a particular state is go#erned or identifiable or b) The old political system of a country. "n this conte%t, the constitution is a document ha#ing ?special sanctity, which sets up the framewor@ and the principle functions of the go#ernmentA. The constitution is the highest source of law in )enya. "t is the supreme law of the land. The constitution itself asserts this thus= Artic$e /0 6) This Constitution is the supreme law of the !epublic and binds all persons and all State organs at both le#els of go#ernment. 5) No person may claim or e%ercise State authority e%cept as authori/ed under this Constitution. 2) The #alidity or legality of this Constitution is not subject to challenge by or before any court or other State organ. 7) Any law, including customary law, that is inconsistent with this Constitution is #oid to the e%tent of the inconsistency, and any act or omission in contra#ention of this Constitution is in#alid. The abo#e rules mean that any other law contradicting the constitution is null and #oid and ineffecti#e. STATUTES

BBM 106 Notes compiled by Francis Kaburu

These are laws made by either parliament itself, or another body with delegated powers from parliament. They can generally be classified into two' $ Acts of &arliament $ >elegated legislation Act o! Par$ia)ent &arliament is established by chapter B of the constitution. "ts made up of two houses= $ The National Assembly' This is made up of two hundred and ninety members 1 each elected by the registered #oters of single member constituencies= forty$se#en women 1 each elected by the registered #oters of the counties, each county constituting a single member constituency= twel#e members nominated by parliamentary political parties according to their proportion of members of the National Assembly, to represent special interests including the youth, persons with disabilities and wor@ers= and the Spea@er, who is an ex officio member $ The Senate' "t shall ha#e forty$se#en members each elected by the registered #oters of the counties, each county constituting a single member constituency= si%teen women members who shall be nominated by political parties according to their proportion of elected members of the Senate= two members, being one man and one woman, representing the youth= two members, being one man and one woman, representing persons with disabilities= and the Spea@er, who shall be an ex officio member0

The procedure for ma@ing law in parliament is= $ 8ill' This is the proposal containing the proposed law bill). There are two types of bills' o &ri#ate members 8ill' drafted by any member of parliament without connection of the go#ernment. ,a#e been famous recently e.g. Se%ual *ffences 8ill by Njo@i NdungCu, C>D 8ill by Euriu@i )arue, Alcohol Control 8ill by <ohn Eututho, and &rice Control 8ill by -phraim Eaina. o Fo#ernment bill' drafted by the go#ernment, either the AF or any ministry can de#elop such a bill. "f it is a go#ernment bill the AF ensures its published, if pri#ate the spea@er ma@es such orders. *nce published in the )enya Fa/ette), it is sent to parliament. $ Dirst !eading' the title and objecti#es of the bill are read out to the members. "mmediately thereafter, each member gets a copy for perusal. $ Committee stage' the bill is referred to the rele#ant committee of parliament immediately after first reading. The committee scrutini/es the bill and based on its deliberations, any #iews from the public and other E&s compiles a report on proposed amendments. $ !eport stage+ second reading' the committee reports bac@ on proposed changes gi#ing reasoning for each. The chair of the committee leads the deliberations. Eembers #ote for each proposed change separately to determine whether to adopt it or not. Any E& can introduce proposals for amendments which shall be subjected to #ote. $ Third reading' A final #ote is ta@en on the bill to decide whether to adopt it wholesomely or not. No amendments can be made at this point. $ Ne%t house' if passed at third reading, the bill goes to the ne%t house, where the same procedure is repeated. $ No amendments in the ne%t house' if its passed in the ne%t house without amendments, goes to president for assent. "f rejected it ends there. $ Amendments' "f the ne%t house ma@es amendments, there is a deadloc@. A mediation committee has to be formed, made up of members from both houses, which de#elops a compromise+consensus. The compromise bill is then sent to both houses for appro#al. "f rejected by any house, it end there= if passed, sent to president for assent. $ Assent' the president must act on the bill within 67 days. "f he doesnCt, it becomes law automatically. ,e has two options= either sign the bill or refuse to sign, sending it bac@ to parliament with a memorandum stating his reasons. $ Eemo' if a bill is passed bac@ to parliament, parliament may amend in accordance with the presidentsC re.uests. They shall then send it bac@ to president for assent, which he must sign in 3 days. &arliament may howe#er ignore the presidentCs comments in which case they need at least 5+2 of the members in each house. They will pass the bill again without amendments in which case it becomes law. $ Law' *nce signed by the president, or automatically becoming law it ceases to be a bill and is now an Act of &arliament. $ "t should be published in the )enya ga/ette within 3 days of becoming law. "t is operational+comes into effect 67 days after its publication unless it pro#ides otherwise. Ad(anta2e o! Act o! Par$ia)ent "t is effecti#e not only to ma@e new laws but also to repeal old ones, which ha#e become irrele#ant in the modern times.

BBM 106 Notes compiled by Francis Kaburu

"t proceeds after proper consideration and through scrutiny and debate in &arliament. They set out the laws in ad#ance, and it gi#es ade.uate time to the courts to be ready for interpretation. Statutes can pro#ide e%pressly for a number of #arying cases, whereas case law or precedents proceeds a step at a time depending on the occurrence of a statute. A well drawn Act, particularly if it is a consolidating Act or a codification restatement of law. "t does not purport to alter it, e%cept in minor details, but does purport to declare what the law is and gi#es it a legislati#e effect) or a branch of law, renders the law on a gi#en subject easy and con#enient for reference e.g. -n#ironment Act. They are published and become public document therefore they are easily accessible. They do not apply retrospecti#ely ne#er bac@dated) especially in criminal matters. Di ad(anta2e "t is embodied in an authoritati#e legal jargon, which are not easily comprehensible. "t is the duty of the court to apply the law as it is in interpreting the law. This is a drawbac@ because the courts are not concerned with the spirit of the law, but with the correct interpretation. Interpretation o! tatute Se#eral things help us interpret statutes. These are= $ "ntrinsic and e%trinsic aids $ !ules of statutory interpretation $ &resumptions of statutory interpretation Intrinsic and extrinsic aids "ntrinsic aids are things found within the statute itself that assist in interpretation. These include= "nterpretation section$ a section defining the terms used in the statute, Sectional ,eads$ tell us what the section is all about, &reamble$ a statement setting out the purpose of the Act. -%trinsic aids are found outside the statute but also help interpret the statute. These include= >ictionary$ helps clarify ordinary meaning of words, &arliamentary reports$ help trace intention of parliament etc. Rules of Statutory Interpretation These are principles of interpretation which ha#e been de#eloped o#er time. They include $ Literal Rule: (ords in statutes are gi#en their natural and ordinary meaning. Se#eral cases ha#e been decided here including= Disher # 8ell 6G16) A flic@ @nife displayed in a shop was not Hoffered for saleC. "t is presumed the draftsmen @now technical legal language and so the common law e%pression was not altered. (hitely # Chappel 6B1B) > could not personate a dead person because a dead person is not entitled to #ote. $ Golden Rule: 0sed when literal rule might produce an absurdity or repugnant result. (hen the plain ordinary meaning so applied they produce an inconsistency, or an absurdity, or incon#enience, the court should adopt the meaning that resol#es the absurdity. Allen # ! 8igamist cannot HmarryC again. $ Mischief Rule: the judge should adopt an interpretation that disco#ers the mischief the Act intended to put right. Smith # ,ughes The HmischiefC this Act was trying to control was that of prostitutes openly soliciting customers in the street, the prostitute was sitting in a house and tapping on a window to attract the attention of men wal@ing by. ,eld' the aim of the Act was to enable people to wal@ along the street without being solicited and e#en though the prostitute was not in the street herself, the Act should be interpreted to include this acti#ity. Fardiner # Se#enoa@s HCa#eC, Act intended to @eep wor@ers and others safe from combustible film, therefore ca#e is a premise. $ Purposive Rule' &arliament should always see@ to gi#e effect to the intention of parliament. "f the intention of &arliament is clear from the words used there is no need for the courts to go outside the statute to find the intention of &arliament. $ Contextual Rule: a word should be interpreted in its conte%t. "t is permissible to loo@ at the statute as a whole to disco#er the meaning of a word in it. Eeaning of the words can be understood from the words around them. $ Ejusdem Generis' if a sentence starts with specific words and ends with general words, the general words are to be ta@en as referring only to those things of the same class as specifically mentioned e.g. Hcats and dogsC does not include wild animals. -#ans # Cross

BBM 106 Notes compiled by Francis Kaburu

(hite line, not a traffic sign I...warning signposts, directions on posts, signs or other de#icesI &owell #. )empton &ar@ !acecourse Co. 6BGG). The 8etting Act 6B42 prohibits the @eeping of a "house, office, room or any other place for betting with persons resorting thereon". The ,ouse of Lords held that the words "any other place" meant a place similar to a house, office or room and would not, therefore, apply to Tattersall;s ring on the racecourse. Presumptions of Statutory Interpretation These are assumptions which remain true unless pro#ed otherwise. $ Statutes should ha#e no retrospecti#e effect i.e. does not apply bac@wards. $ Any gaps and omission from statute are Hultra #ires,C i.e. beyond the scope of the statute. $ "f a statute imposes criminal liability it must re.uire Hmens rea,C i.e. proof of guilty intention. $ "f a statute appro#es confiscation+sei/ure of assets, compensation for #alue must be gi#en. $ Acts of &arliament ha#e no e%traterritorial effect i.e. they only apply within territory of )enya. $ A statute does not change the Common Law unless e%pressly stated by the Act of &arliament. $ A statute does not repeal other statutes unless it e%pressly states so. $ A statute does not ta@e away personal liberties unless by e%press words. $ -#ery person is assumed innocent until pro#en guilty De$e2ated% u' idiary Le2i $ation This is law made by other bodies with authority from parliament. This includes= $ Court !ules' !ules Committees of the #arious courts are empowered to ma@e the rules which go#ern procedure in the particular courts o#er which they ha#e delegated authority. $ &rofessional !egulations' &rofessional regulations go#erning particular occupations may be gi#en the force of the law under pro#isions delegating legislati#e authority to certain professional bodies. An e%ample is the power gi#en to the Law Society of )enya, "C&A), "C&S) etc. $ Legal Notice' also called Statutory "nstruments, being the means through which Fo#ernment Einisters introduce particular regulations under powers delegated to them by &arliament in enabling legislation e.g. the Eichu@i !ules. $ Local Authority 8yelaws' Local Authority 8yelaws are the means through which local authorities and other public bodies can ma@e legally binding rules and may be made under such enabling legislation as the Local Fo#ernment Act. Control of ele!ated le!islation These difficulties and potential shortcomings in the use of delegated legislation are, at least to a degree, mitigated by the fact that specific controls ha#e been established to o#ersee it' i) &arliamentary control o#er delegated legislation' The power to ma@e delegated legislation is ultimately dependent on the authority of &arliament. &arliament, therefore, retains general control o#er the procedure for enacting such law. This happens through committee on legal affairs, which is empowered to scrutini/e the delegate legislation to ensure they are within the law. Any member can mo#e a motion in parliament to challenge any delegated legislation e.g. ga/ette notice re$appointing !ingera. ii) <udicial control of delegated legislation' >elegated legislation can be challenged #ia the medium of judicial re#iew. The courts control this in two ways= $ *n the basis that the person or body to whom &arliament has delegated its authority has acted in a way that e%ceeds the limited powers delegated to them. Any pro#ision made outside this authority is deemed ultra vires and is #oid. $ Those legislations that are contrary to the constitution are null and #oid as per section 5 7) of the constitution. Ad(anta2e o! Su' idiary Le2i $ation i. Time &arliament is not always in session and besides it lac@s time to deal with and analy/e all the national policies or issues. Therefore, delegated legislation release pressure on parliamentary time to concentrate on principles rather than detail. ii. Dle%ibility 0nli@e legislation, if a ministerial order, rule or power pro#es impracticable or unrealistic, it can be re#o@ed, hence its fle%ibility. iii. Technicality &arliament cannot handle technical issues. Einistries+ministers are assisted by e%perts who are well e.uipped and trained to ma@e their effecti#e and practical laws on such issues li@e drug regulations, road traffic matters, etc. i#. >etails

BBM 106 Notes compiled by Francis Kaburu

"t allows administrati#e authorities to fill in the details of a statutory scheme i.e. ?it pro#ided the flesh and blood to the s@eleton so that it may li#eA N8' >ecentrali/ation of decision ma@ing in essence in#ol#es delegation of power. This will lead to rapid de#elopment. Di ad(anta2e a. Abuse "t is prone to abuse i.e. the powers and trust conferred to ministries or bodies can easily be misused. b. &ublicity or Lac@ of "t "n contrast to legislation law, these lac@ wide publicity so that indi#iduals may not be aware of rules and orders passed by ministries or bodies, yet they are subject to it. c. "nsufficient <udicial Control The court does this on the basis of ?ultra #iresA e%cess of authority) unreasonableness or uncertainness. Courts act only when and where there is a complaint or plaintiff and ne#er on its own motion. The disad#antage of this is that an aggrie#ed+affected person may and in most cases lac@ the resources to mo#e the court. d. "nterpretation "n interpretation, the courts loo@ at the matter of the law and not the spirit thereof, i.e. the intention of the lawma@ers J courts cannot introduce their own interpretation. INTERNATIONAL LAW 8efore 5K6K, )enya was a dualist state i.e. for all treaties, con#entions and rules of international law, they had no local effect until parliament passed a domesticating statute e.g. "nternational Crimes Act domesticating the !ome Statute. ,owe#er, the constitution changed this thus= Artic$e /34) The general rules of international law shall form part of the law of )enya. 35) Any treaty or con#ention ratified by )enya shall form part of the law of )enya under this Constitution This changes )enya into a monist state, where international law is applied directly without need of domesticating statute. )enya is a signatory to se#eral international laws including= $ !ome Statute $ "nternational Con#ention on Ci#il and &olitical !ights "CC&!) $ Con#ention on -limination of all forms of >iscrimination Against (omen C->A() #ASE LAW%6UDI#IAL PRE#EDENT <udges in interpreting and applying law also ma@e law. This is based on the doctrine of judicial precendent, which is the idea that a statement of law made by a judge in a case can become binding on later judges and can in this way become the law for e#eryone to follow. This doctrine is deri#ed from the Latin ma%im= "stare decisis" $ stand by your decision i.e. what has pre#iously been decided. (hene#er judges listen to a case, they ma@e a decision i.e. judgment, which is called precedent. The judgment has two main di#isions= $ !atio >ecidendi, reason for the decision)' consists of the legal principles and rules, which are necessary to sol#e the problem before the court. $ *biter >icta by the way remar@s)' something said either about the law or the facts of the case which is Iby the wayI, in other words, not strictly necessary for the legal basis for the decision. "n applying precedents, only the ratio decidendi will be binding. *biter dicta are not binding, but they may be treated as of Ipersuasi#e authorityI

Advantages and isadvantages of !ase "aw (e can now set out the comparati#e merits and defects of case law. The ad(anta2e can be listed as follows. $ Case law is practical and concrete= this is because it is the product of a set of facts upon which a decision must be reached. "t is not the result of academic theorising, but of actual e#eryday difficulties.

BBM 106 Notes compiled by Francis Kaburu

$ $ $ $ $ "t is more fle%ible than legislation. Durther, because of its binding nature, people can regulate their conduct with confidence in its certainty. "t is more easily and .uic@ly made than legislation, and this is particularly important where adaptation of the law to minute differences of circumstances is re.uired. "t acts as the best preparation for statute law. Codifications such as the Sale of Foods Act 6G3G and the 8ills of -%change Act 6BB5 are the outcome of judicial decisions, and are models of statute law. "ts detail is much richer than any code of law but against this must be set its comple%ity). 0nli@e statute law, there is harmony between new precedents and e%isting law, which grow concurrently.

The di ad(anta2e can be listed as follows. $ "t is not made by the community but by the judges. ,owe#er, &arliament can, and does, o#errule judicial decisions, as it did in the case of #urmah Oil v$ "ord Advocate%&'()*, by passing the retrospecti#e effect of the +ar amage Act %&'()*. The judges are strictly impartial and highly e%pert Jprobably more so than a body of legislators. $ As case law adds an increasing number of e%ceptions to unwanted rules, it is notorious for its bul@ and comple%ity. "t is a difficult form of law to handle but, as legislators now endea#our to anticipate judicial decisions, the statute law itself tends to become more bul@y and in#ol#ed, too. $ Case law is often criticised as being retrospecti#e in effect or Iex post factoI. Theoretically, of course, judicial decisions merely gi#e effect to principles that ha#e always e%isted in the body of the law. This peculiarity does not always operate fairly, for a decision may upset long$standing interests by its retrospecti#e operation. $ Dinally, it is difficult to disentangle that part of the judicial decision which is strictly a binding source of law the ratio decidendi) from Ithings said by the wayI, i.e. obiter dicta. DO#TRINES OF #O&&ON LAW AND E7UIT" &eople in -ngland used their customs to resol#e disputes among them, until the time of the Norman Con.uest in 614G A>. A new )ing came to power who wanted to ha#e formal systems of dispute resolution. ,e appointed !oyal Commissioners who went round the country to obser#e how each community resol#ed its disputes. *n coming bac@ to London, these set up a court at (estminster, where they heard cases and resol#ed disputes. The judgments and rules of this court were then called common law$ as they were deri#ed from the practices of each community. Common Law+ Case Law is based on the doctrine of <udicial &recedent. As judges continued to ma@e judgements se#eral principles emerged$ called doctrines of common law. Common law was administered in the old royal courts and, because its rules were rigid, its strict application led, in many cases, to injustice and oppression. Thus, those unsatisfied with common law judgments would see@ justice from the )ing, as the Ifountain of all justiceI. Thus, the )ing;s residuary power permitted him to temper the infle%ibility of the ordinary law and to do justice according to reason, good faith, good conscience and the current ideas of morality, when he was petitioned to do so. *#er$time as the cases became many, he delegated this wor@ to the Lord Chancellor. This new system of justice de#eloped to become the Chancery Court and came to be @nown as He.uity.C -.uity means fairness. This new system also o#er time established se#eral principles @nown as >octrines of -.uity. The abo#e two are applicable in )enya since the )enyan legal system is largely based on the -nglish legal system, our colonial power. AFRI#AN #USTO&AR" LAW African customary law may be described as the law based on the customs of the ethnic groups which constitute )enya;s indigenous population. Section 2 5) of the <udicature Act 6G13 pro#ides that the ,igh Court, the Court of Appeal and all subordinate courts shall be guided by African customary law in ci#il cases in which one or more of the parties is subject to it or affected by it, so far as it is applicable and is not repugnant to justice and morality or inconsistent with any written law. These pro#isions of the <udicature Act may be e%plained as follows' 3a) 8uide The courts are to be IguidedI by African customary law. This pro#ision gi#es a judge discretion whether to allow a particular rule of customary law to operate or not. The judge is not bound by any rule of customary law and may therefore refuse to apply it if, for e%ample, he feels that it is repugnant to justice or morality. 3') #i(i$ #a e Customary law is applicable only in ci#il cases. The >istrict Eagistrate;s Court;s Act 6G13, S.5 restricts the ci#il cases to which African customary law may be applied to claims in#ol#ing any of the following matters only'

BBM 106 Notes compiled by Francis Kaburu

i) land held under customary tenure= ii) marriage, di#orce, maintenance or dowry= iii) seduction or pregnancy of an unmarried woman or girl= i#) enticement of, or adultery with, a married woman= #) matters affecting status, particularly the status of women, widows and children, including guardian$ship, custody, adoption and legitimacy= #i) intestate succession and administration of intestate estates, so far as it is not go#erned by any written law. "n ,aman-a !hiwaya v .suma unreported ,igh Court Ci#il Appeal No.1 of 6G3K) the ,igh Court held that the abo#e list of claims under customary law was e%hausti#e and e%cludes claims in tort or contract. 3c) Su'9ect to it or a!!ected it *ne of the parties must be subject to it or affected by it. "f the plaintiff and the defendant belong to the same ethnic group, they may be said to be IsubjectI to the customs of that ethnic group which could then be applied to settle the dispute. Dor e%ample, a dispute between )i@uyus relating to any of the matters listed in b) abo#e cannot be settled under )amba, Luo or any other customary law e%cept )i@uyu customary law. ,owe#er, if there is a dispute in#ol#ing parties from different ethnic groups it may be determined according to the customs of either party, since the other party would be IaffectedI by the custom. 3d) Repu2nance to 9u tice and )ora$ity The customary law will be applied only if it is not repugnant to justice and morality. Although the Act uses the phrase IandI in relation to Ijustice and moralityI, it appears that IorI, rather than IandI, was intended. 3e) #on i tent wit* t*e written Law Customs cannot contradict any written law, whether statute or international law. ISLA&I# LAW "slamic law is the law based on the ,oly )oran and the teachings of the &rophet Eohammed as e%plained in his Sayings called I,adithI. "slamic law is applicable in )enya under section 4 of the )adhi;s Courts Act 6G13 when it is necessary to determine .uestions of Euslim Law relating to= $ personal status, $ marriage, $ di#orce or $ inheritance The Constitution places further re.uirements in section 63K 4) thus= $ All the parties profess the Euslim religion and $ Eust be willing to submit to the jurisdiction of the )adhiCs courts.

.INDU LAW ,indu customary rites are applicable under S.4 of the ,indu Earriage and >i#orce Act, 6G1K. S.5 of the Act defines a IcustomI as Ia rule which, ha#ing been continuously obser#ed 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 to public policy= and, in the case of a rule applicable only to a family, has not been discontinued by the familyI. ,indu customary rites are a source of )enya law only for purposes of solemni/ing ,indu marriages. #O&PILED +", Franci N9i*ia Ka'uru1 Lecturer1 +u ine Depart)ent1 &&UST0 ::::::::::::::::::::::::::::::::::::more notes to come::::::::::::::::::::::::::::::::::::::::