THE custom of the society. Customs are

THE custom of the society. Customs are

THE CATHOLIC UNIVERSITY OF EASTERN AFRICA NAME: WENDY NYAMBURA KARIUKI COURSE: CLS LEGAL SYSTEMS LECTURER: MR. JAMES MAMBOLEO REG. NO: 1019557 DATE: 18-10-2011 FIRST TRIMESTER FACULTY OF LAW INTRODUCTION DEFINITION Customary law is a body of customs and traditions which regulate various kinds of relationships between members in a community.

Customary laws are said to be applicable to the extent that they are not repugnant to justice, morality or any other written law. CUSTOM AS A SOURCE OF LAWBoth custom and law are the realization of the measure of society’s insight and ability and also the principles of right and justice. Law embodies these principles in the exercise of its sovereign power while custom embodies its principles as acknowledged and approved by the public opinion of the society rather than by the power of the state. When the state begins to evolve out of the society, the law of the state is often modeled on the custom of the society. Customs are divided into two: 1. Legal custom- its authority is absolute and for that reason it possesses the full force of law, for example the custom preventing re-marriage.

If the rule that widows cannot re-marry is absolute custom, the widow knows that she cannot re-marry. 2. Conventional custom- operates directly through the medium of agreements, its authority being conditional to acceptance. In England the term custom is used to refer to legal custom with force of the law while conventional custom refers to usage. Custom therefore is seen as a source of law in a sense that customary law is generated by customs. The people in a community start by forming uniform practice and by virtue of uniformity it is referred to as custom then the practice gains the force of law by being stuck in the mind of people.CUSTOMARY LAW IN ENGLAND It is important to look at the development of customary law in England so as to understand how African customary law was incorporated in our laws today even after colonization by the British.

In England, customary law formed the basis for the emergence of common law system. This is because the common law courts were enforcing the law that is common in a particular area and the decisions of those were followed thereby creating precedents. Common law is to a great extent the child of custom. Judicial precedents and legislation evolved as a new way of creating new customs.

The English legislature did not start as a law making body. Its original role was that of an advisory body with limited judicial functions. Its role was to evaluate and state that this is law much as what the courts do today. This is why the house of lords is both the parliament and the court of law.

In those initial stages the legislative role of Parliament was negligible and it later took over the task of legislating the law. Therefore the common law is the product of customary law. Blackstone describes the common law as the common custom of the realm in the 16th century.In modern time custom has been subordinated to common law especially in England. Tests have been evolved to determine the acceptability of custom in the area of customary law as opposed to the conventional custom. One of the tests is that it must have existed from time immemorial. In England it must go back as far as 1189 although we cannot use this age in determining the custom.

HISTORY OF AFRICAN CUSOMARY LAW IN KENYA With regard to the pre-colonial period, before arrival of the Europeans indigenous legal institutions was the law. They were customary in origin and type.They were not uniform due to ethnic groupings. They were enormous in structure of the law and contents.

The variations were brought about by different stages of economic and political development, different social and kinship systems, different religious beliefs and different cultural practices of the society. During the colonial days customary laws were regarded as a special category of laws used in governing natives. For that reason they were given inferior status compared to the received English law. This was despite the fact that customary law governed the local population.

During this time customary law was permitted except where it was said that the law and institutions run counter to the demands of colonial administration or where they were thought to be repugnant to the civilized ideas of justice and morality. Customary law is a body of rules founding its legitimacy in tradition. The content is diverse changing from village to village. The legal system is based on English common law, African customary law and Islamic law. African customary law is used as a guide in civil cases affecting people of the same ethnic group so long as this does not conflict with statutory law.There are currently four types of courts in Kenya: resident and district magistrate courts, senior resident and chief magistrate courts High court and the court appeal. APPLICATION OF AFRICAN CUSTOMARY LAW IN KENYA TODAY The Constitution, 2010 It has the following provisions on customary law; Article 2 (4) provides under the heading “Supremacy of this constitution” that any law, including customary law, that is inconsistent with this constitution is void to the extent of inconsistency, and any act or omission in contravention of this constitution is invalid.

This means that the application of customary la in Kenya is subject to the provisions of the constitution and any other written law. For example the customary law provision that women have no right to own property has been undermined by article 27(3) under the heading “Equality and freedom from discrimination. ” It stipulates that women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.

Statutes governing African customary law African customary law is also governed by various statutes for example the Judicature Act sect. (2) provides that, the High Court, the Court of Appeal and all subordinate courts shall be guided by African customary law in civil 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, and shall decide all such cases according to substantial justice without undue regard to technicalities of procedure and without undue delay. Another act governing African customary law is The Magistrates Act. Sect. 2 of the act provides that unless the ontext otherwise requires-“claim under customary law means a claim concerning any of the following matters under African customary law: * Land held under customary tenure * Marriage divorce maintenance or dowry * Seduction or pregnancy of an unmarried woman or girl. * Enticement of or adultery with a married woman. * Matters affecting status and in particular the status of women, widows and children, including guardianship, custody, adoption ,and legitimacy * Intestate succession and administration of testate estates so far as not governed by any unwritten law.

| | |The following are cases that illustrate the application of customary law in Kenya In Re Estate of Lerionka Ole Ntutu (Deceased) 2008 eKLRIn the plaintiff who was polygamous with seven wives passed on. Subsequently his brothers, step-brothers and daughters- married and unmarried had a claim over his property, the courts were guided by the Maasai customary law which stipulated that married women had no right to inherit property. However the Judicature Act which is superior to the customary law disregards the application of customary law if it is repugnant to justice and morality.It appears that the Maasai customary law is repugnant to justice and morality to the extent that it permits gender discrimination. In Wambua vs. Okumu: a dispute arose as to the custody of a four year old illegitimate girl. The African court had applied Bagishu customary law and custody was awarded to the father on payment by him of cattle valued at Ksh 200 to the other party.

One ground of appeal was that the guardianship of infant act allows the court to be guided by what the court feels to be in the best interest of the child. In this case the court felt that the mother was in the best position to care for a young female child.It was possible to refuse to follow customary law because that law was inconsistent with the Act. Another case is that of K .

v. K (1972) E. A 554 where the respondent was married to another woman by Kikuyu customary law at the time when he purported to marry the petitioner in the registrar’s office, Nairobi under the provisions of the Marriage Act. As the respondent was already married by Kikuyu customary law, the ceremony was invalid.

Decree of nullity was granted. CONCLUSION African customary law is used today in law courts and is governed by the Constitution (the sovereign law of the land), Statutes/ Acts of Parliament and Case Laws.These limit the extent to which customs may be used as law and in doing so ensure that no customary law is repugnant to justice, morality and any other written law. These laws are very wide in variety due to the many tribal communities in Kenya hence they need to be governed as such. African customary law is therefore a source of law to the extent in which it applies.

REFERENCE The Law of Kenya by Tudor Jackson Kenya Law Reports (2008) 1 KLR G&F Judicature Act Chapter 8 www. kenyalaw. org. Judicature.

cap. 8.