Trial Advocacy and Formal Sources of Law

Firm 2B Class of 2017 KSL

SOURCES OF KENYA LAW

A source of law is the origin of the rule, which constitutes a law, or legal principle.  The phrase `sources of Kenya law' therefore means the origin of the legal rules which constitute the law of Kenya.

The various sources of law of Kenya are identified by the Judicature Act section 3(1) Cap 8, Laws of Kenya.

They are classified into two categories i.e statutory (written) and Non-statutory (unwritten.)

STATUTORY

They include the following

1.      The constitution

It is a formal document that defines rules and regulations, functions and roles of the various government state bodies and the relation between them and the public. A constitution is a body of fundamental principles according to which a state or other organization is acknowledge to be governed.

Article 2(1) of the constitution provides that the constitution is supreme law of the republic and binds all persons and all state organs at both level of government.

2.      Acts of Parliament.

They are also referred as legislations .Prior to the adoption of the new constitution of 2010, Kenya was a unicameral state with only one legislature. However after the 2010 constitution Kenya is now a bicameral state.

3.      Subsidiary/Delegate/Subordinate.

They refer to those laws made by persons or bodies to which government has delegated. For example civil procedure rules.

4.      County Assembly Legislations.

Chapter 11 of the constitution introduced a devolved system of government .As such the county government were given powers to make their individual county laws.

Article 191 of the county Assembly Legislation applies to resolving of conflicts between national and county legislation in respect of matters falling within the concurrent jurisdictions of both levels of government.

5.      Foreign legislations.

These are Acts of parliament from other countries. They include the following

ü  -Acts of parliament of United Kingdom cited in Part 1 of the Schedule in Judicature act and modified in accordance with part 11 of that schedule.

ü  -Statutes of General Applications enforced in England on 12^th August 1897.e.g the Indian Transfer of Property Act 1882.

6.      Treaties and conventions.

Article 2(6) of the constitution provides that any treaty and convention ratified by Kenya shall form part of the law. E.g. the Rome Statute.

7.      General rules of international law.

Article 2(5) of the constitution.

NON STATUTORY SOURCES

1)      English common law

2)      Doctrines of equity.

3)      International customary law.

4)      African customary law. Judicature act Sec 3(2) Applicable where it’s not repugnant to justice and morality or inconsistent with any written law.Article 2(4) of the constitution.

5)      Religious law. E.g Islamic law.

6)      Judicial precedents

Is a decision of the court used as a source of future decision-making. This is known as stare decisis (to stand upon decisions) and by which precedents are authoritative and binding and must be followed.

Under section 159(1) of the constitution, Judicial authority is derived from people and vests in, and shall be exercised by, the courts and tribunals established by or under this constitution.