Understanding the Sources of Law in Kenya: A Complete Guide

Law is an essential part of our daily lives, guiding how we interact with one another and ensuring fairness and justice in society. But have you ever wondered where the law comes from? How do judges and legal professionals justify their decisions in a court of law? This blog will explore the sources of law  in Kenya, giving you an in-depth understanding of how laws are made and enforced in the country. Let’s dive into the key sources of law that shape Kenya’s legal system and help maintain order in society.

1.    What Are the Sources of Law in Kenya?

In Kenya, sources of law refer to the different origins from which law is derived. These sources provide the framework for governing the country, ensuring that the rights of citizens are protected, and that justice is served. Below are the primary sources of law in Kenya:

a)  What Is the Constitution of Kenya?

The Constitution of Kenya is the supreme law of the land. It was enacted on September 12, 1963, and amended in 2010. The Constitution serves as the primary source of law in Kenya, establishing the principles of governance, the structure of government, and the rights and freedoms of citizens. It covers a wide variety of issues, including:

• The method of voting.
• Appointment of ministers and judges.
• Protection of individual rights and freedoms.
• Immunities of judges.

The Constitution is the ultimate authority, and any law that conflicts with it is deemed invalid. Knowing the Constitution is essential for understanding your rights as a citizen. To learn more about the sources of law in Kenya, enroll in the Basics in Law course at Finstock Evarsity College and gain a deeper understanding of how the Constitution influences the legal landscape.

b) What Are Acts of Parliament?

Acts of Parliament are laws made by the national Parliament. These laws can either directly or indirectly prescribe rules and regulations for governance. Here’s a closer look at how Acts of Parliament contribute to the sources of law:

• Direct Legislation: These are laws that are directly contained within an Act of Parliament. They are made by Parliament and passed into law.
• Indirect Legislation (Delegated Legislation): This is when a body authorized by an Act of Parliament, such as ministers or local authorities, is given the power to create rules with the force of law. Examples include by-laws created by local authorities or regulations set by government ministers.

Indirect legislation allows for flexibility in governance, as it enables relevant authorities to make rules as needed, within the framework established by Parliament.

c)  What Is the Role of Common Law in Kenya?

Common law plays a significant role in the sources of law in Kenya, and it has been inherited from English legal traditions. Common law consists of legal principles developed by judges through their decisions in individual cases. These decisions, also known as precedents, are binding on lower courts, making consistency in legal decisions a key feature of common law. The key aspects of common law include:

• Precedent: Decisions made by higher courts must be followed by lower courts. This ensures uniformity in legal rulings.
• Equity: In cases where common law may not provide a fair solution, equity fills the gaps, ensuring that justice is served.

This combination of common law and equity ensures a fair and consistent approach to legal decision-making in Kenya.

d)  What Is African Customary Law?

African customary law originates from the traditions and practices of Kenya’s indigenous communities. This law primarily applies to civil cases and is important for resolving matters related to land, marriage, family, and inheritance. African customary law is especially relevant in rural areas, where traditional practices guide many aspects of community life. Key areas covered by customary law include:

• Land held under customary law.
• Matters related to marriage, divorce, and dowry.
• Succession and administration of estates.

While customary law is limited to civil cases, it remains a crucial part of the sources of law in Kenya, particularly in matters concerning family and community-based issues.

e). What Is Islamic Law?

Islamic law, also known as Sharia, is another significant source of law in Kenya, particularly for Muslims. Islamic law is derived from the Quran and governs personal matters such as marriage, divorce, and inheritance. In Kenya, Islamic law is applied in Kadhi’s courts, where cases involving Muslims are handled by judges who have a deep understanding of the Quran. The key areas governed by Islamic law include:

• Marriage: How marriages are formed and dissolved under Islamic principles.
• Divorce: The process of ending a marriage in accordance with Sharia.
• Inheritance: How property and assets are distributed according to Islamic law.

If you are interested in a deeper understanding of Islamic law and its application in Kenya, consider enrolling in a Theology course at Finstock Evarsity College to gain a thorough knowledge of the Quran and how it influences the legal system.

2. Why Are the Sources of Law Important?

Understanding the sources of law in Kenya is crucial for anyone seeking to grasp the foundations of the country’s legal system. From the Constitution to Acts of Parliament, common law, customary law, and Islamic law, these sources of law ensure that society remains just and orderly. Whether you are navigating legal matters as a citizen or pursuing a career in law, understanding these sources will provide you with the tools to engage with the legal system effectively. Want to dive deeper into the sources of law in Kenya? At Finstock Evarsity College, we offer courses designed to help you understand the legal framework of the country. Enroll today to expand your knowledge of the sources of law and take your understanding of the Kenyan legal system to the next level!