Application of African Customary Law in Kenya

1602 Words Oct 29th, 2011 7 Pages
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 LAW
Both 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
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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…

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