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Researching Kenyan Law

 

By Tom Ojienda and Leonard Obura Aloo

 

 

Tom Ojienda holds a Masters of Law degree (LLM) from King’s College London and a Bachelor of Laws degree from the University of Nairobi. In addition, he holds a postgraduate diploma in Law from Kenya School of Law and a Diplome de langue from Alliance Francais de Paris. He is currently completing his (LLD) degree at the University of South Africa. He has taught Property Law, Proprietary Rights and Transactions, Professional Ethics, Gender and The Law of the Sea at Moi University for the past 9 years and currently serves as the head of the Department of Clinics and Externships. He has published and edited several books including “Conveyancing: Theory and Practice” [2002],The Legal Profession and Constitutional change in Kenya [2002), “A General Introduction to the New Law of the sea,” [2002], “Constitution making and Democracy in Kenya” [2003] He has published several papers in several referred journals including articles in the areas of Environmental Law, Property Law, Legal Aid, Family Law, and Legal training. An Advocate of over 12 years experience, Mr. Ojienda currently serves as the Chairman of the Law Society of Kenya and the Vice President of East Africa Law Society and the Pan African Lawyers Union. He is also a member of the Council of Legal Education. He has consulted for the Njonjo and the Ndungu Land Commissions and the Task Force on HIV/AIDS. He was also part of the Land policy formulation process of the ministry of lands. In addition Mr. Ojienda has presided as one of the Judges in the Africa Human Rights Moot Court in Mozambique, Dar-Es-Salaam, South Africa, Ghana, Ivory Coast, Egypt and Zimbabwe. In addition he is a Human Rights trainer for the Kenya National Commission on Human Rights. He has presented several papers in many National and international conferences the last of which was a presentation made on 7th September 2005 at the International Conference on Human Rights at the University of Johannesburg, where he presented a paper entitled “Implementing the New Partnership for Africa’s Development (NEPAD): Whither the African Peer Review Mechanism?”

 

Leonard Obura Aloo LL.B. (Nairobi) LL.M. (Commercial Law) (Cape Town), LL.M. (IT and Telecommunications Law)-Candidate (Strathclyde, Glasgow UK). Advocate of the High Court of Kenya.  He is an advocate practicing in Nairobi, Kenya and adjunct law Lecturer at the United States International University, Nairobi, Kenya. Previously he worked as the head of Commercial Legal Services for Telkom Kenya Limited, the local fixed-line telecommunications provider.  His research interests are in the area of international trade law, regulatory law, alternative dispute resolution, information technology and telecommunications law.

 

Published November 2006

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Table of Contents

Introduction

Historical background

The Kenyan Legal System

The Constitution

The Government

The Executive

The Legislature

The Judiciary

The Structure and Jurisdiction of the Courts

The Court of Appeal

The High Court

Subordinate Courts

Sources of Kenyan Law

The Constitution

Acts of Parliament

Specific Acts of Parliament of the United Kingdom

English Statutes of General application in Force in England on 12th August 1897

The Substance of Common Law and Doctrines of Equity

African Customary Law

Islamic Law

International Instruments

Law Reporting

Kenyan Laws

Published decisions of the Courts in Print Form

Online Legal Information

Secondary Legal Information

Journals

The Legal Profession

 

Introduction

Kenya is a country on the coast of East Africa. Before 1895, when Kenya was declared a British Protectorate, the country had no structured legal system to speak of. The territory had been administered via the Imperial British East Africa Company, which ‘had to carry out all the obligations undertaken by the British Government under any treaty or agreement made with another state...’

 

In 1896, the territory became known as the East African Protectorate.  It was renamed Kenya Colony and Protectorate in 1920 and it remained so until 1963, when Kenya became an independent state. As a result of British administration for over six decades, the Kenyan legal system borrows heavily from the English legal system.

 

Historical Background

With the settlement of the British in the East African Protectorate, there arose a need for a legislative and administrative system to govern the inhabitants. It should be noted that British settlement was in two instances, direct and indirect.  Direct in the sense that the settlers came into the area straight from Britain and indirect in that there were those settlers who came from India, which had already been a British colony. Thus there existed three sets of people, the British, the Indians who were considered British citizens and the natives.

 

For ease of administration, the British settlers imported laws and their system of governance from Britain, and British laws which had been codified in India, to apply to the East African Protectorate. These laws at the onset, were mainly for the benefit of the settlers, and were applied without regard to the already existing African/native society.

 

The natives were considered to be too primitive to understand the intricacies of the law, and were thus left to practice African Customary law. The Hindus who had emigrated from India were also allowed to practice Hindu Customary law in area of personal law, while the Muslims and Arabs, who were centralized at the coast, practiced Muslim Law.

 

Thus there now existed several parallel systems of law.  Though the British tried to phase out by enacting laws to govern the whole country, the effect of the multiplicity can still be felt and seen in the current Kenyan legal system.

 

The Kenyan Legal System

The Constitution

The Kenyan Constitution is the supreme law of the land, and any other law that is inconsistent with the Constitution, shall, to the extent of the inconsistency, be void. The Constitution of Kenya contains the following parts:

Chapter I - The Republic of Kenya

Chapter II - The Executive

Chapter III - Parliament

Chapter IV - The Judicature

Chapter V - Protection of Fundamental Rights and Freedoms of the Individual

Chapter VI - Citizenship

Chapter VII - Finance

Chapter VIII - The Public Service

Chapter IX - Trust Land

Chapter X - General

Chapter XI - Transitory

 

The independence Constitution was enacted on the 12th of December 1963. There have been several amendments to the Constitution since then, and currently, Kenya is undergoing the Constitution Review Process.

The Government

The powers of the Government are divided into 3 functions: executive function, legislative function and the judicial function.

The Executive

The Executive consists of the President, the vice-President, Ministers and the Assistant Ministers, who are all members of the National assembly (Parliament). The executive implements all the laws made by parliament. The Executive authority is vested in the President. Kenya has a Parliamentary president, where the president is both the Head of State and Government, and also a member of parliament. At the same time, the whole government can, by law, be dismissed from office by an adverse vote in parliament. The Cabinet consists of the president, vice-president and ministers. Its function is to aid and advice the president. The Ministers are appointed by the President and are charged with responsibility over a department/ministry, over which they are to exercise general direction and control. The President has power to dissolve and prorogue parliament, but he has to summon it into session not later than 12 months from the end of the preceding session, if parliament has been prorogued, or three months from the end of that session if parliament is dissolved.

The Legislature

Parliament only has one chamber. The main function of the legislature is to make laws. The legislature consists of the president and the National Assembly. The National Assembly is currently composed of 224 members, 222 being Members of parliament and 2 ex-officio members, the Attorney General, and the Speaker of the National Assembly. The Speaker presides over the meetings of the National Assembly.

 

Most of the laws in Kenya emanate from an act of Parliament. These are introduced into Parliament as Bills. The Bill has to be published, in the Kenya Gazette, fourteen days before its introduction.  It then has its First Reading, which is a formal reading of the title of the Bill. This is followed by a Second Reading, which is an occasion for debate on the general principles of the Bill, after which it is referred to a Committee of the National Assembly for debate and discussion on the detailed provisions. If the Committee reports favorably to the Assembly, then the Bill has its Third and final reading, where the debate, if any, is restricted to a general statement or reiteration of objections. If approved, the Bill is ready for the Presidential assent, after which it becomes an Act of Parliament. The date of commencement of the Act is either the date it received the Presidential Assent, or a date shortly afterwards, or it can be brought into operation by order made by the appropriate Minister.

 

Parliament also plays an important, but not exclusive, role in the financial control of Government expenditure. Parliament control over revenue and expenditure is secured by the establishment of the Consolidated Fund, into which all revenue of the Government must be paid. However, Parliament may authorize the establishment of other funds for specified purposes, and may also provide that some of the revenue need not be paid into any established fund but may be retained by the authority which received it, for offsetting the expenses of that authority.

 

Parliament also acts as a control and criticism of the Government, in that it can pass a vote of no confidence, which can lead, depending on the decision of the president, either to the dissolution of Parliament or the resignation of the Government.

The Judiciary

The judiciary consists of the Courts and all officers of the Courts including, the Chief Justice, the Attorney General, Judges and Magistrates. The judiciary determines disputes which arise between individuals, and those arising between individuals and the State.

 

The Structure and Jurisdiction of the Courts

The Court of Appeal

It is the highest Court in Kenya. It has only appellate jurisdiction, in both civil and criminal cases, it has no inherent jurisdiction. It is presided over by the Judges of Appeal, who are appointed by the President. The decisions of the Court of Appeal are binding on all other subordinate courts, including the High Court. The Court of appeal sits mainly in Nairobi, the capital of Kenya, but travels on circuit to other principal towns in Kenya to hear appeals.

The High Court

It is presided over by puisne judges, judges of the High Court, who are appointed by the president. It has unlimited original jurisdiction in civil matters. In Criminal matters, it only hears cases of murder and treason. It also has appellate jurisdiction in both civil and criminal matters, in that appeals from the subordinate courts are preferred to the High Court.

Subordinate Courts

The jurisdiction of these courts is determined on a territorial and pecuniary basis. They are presided over by magistrates. The magistrate’s courts are in order of hierarchy, with the Chief Magistrate’s court being the highest, followed by the Senior Principal Magistrate’s Court, Principal Magistrate’s Courts, Senior Resident Magistrate’s Courts, Resident Magistrate’s Courts and the District Magistrate’s courts.

 

  • Kadhi’s Courts - Established under the Kadhi’s Courts Act, (Chapter 11 Laws of Kenya), it is presided over by the Chief Kadhi or a Kadhi. It has jurisdiction to determine questions of Muslim law relating to personal status, marriage, divorce and inheritance in proceedings in which all the parties profess the Muslim religion. Appeals from the Kadhi’s courts lie to the High Court, which sits with the Chief Kadhi or two other Kadhis as assessors.
  • The Children’s Court - Established in 2001, it is a special court which deals with cases concerning children. It hears cases concerning parental responsibility, children institutions, custody and maintenance, orders for the protection of children, children in need of care and protection. It also hears cases where a person has been charged with an offence under the Children’s Act. It however does not hear cases where the child is charged with murder, or jointly with adults.
  • Tribunals - These are quasi-judicial bodies established piecemeal to deal with specific matters. The more prominent tribunals are:
  • The Industrial Court - Although called a ‘court’, it does not form part of the Kenyan Court structure. It is presided over by judges appointed by the president and eight other members appointed by the Minister of Labour. Its function is to settle trade disputes generally and trade disputes in essential services.
  • Rent Tribunals - These deal with matters concerning landlord and tenant relations.

 

Sources of Kenyan Law

The primary sources are enumerated in Section 3 of the Judicature Act (Chapter 8 Laws of Kenya), and they include:

The Constitution

It is the supreme law of the land, taking precedence over all other forms of law, written and unwritten. If any other law is inconsistent with it, the constitution prevails, and the other law, to the extent of its inconsistency, is void. Many Acts of Parliament are made pursuant to particular provisions in the Constitution.

Acts of Parliament

These are passed by parliament and also include subsidiary legislation, that is, laws made under the authority of an Act of Parliament.

Specific Acts of Parliament of the United Kingdom

These are cited in the schedule to the Judicature Act and include:

  • The Admiralty Offences (Colonial) Act, 1849.
  • The Evidence Act, 1851, sections 7 and 11.
  • The Foreign Tribunals Evidence Act, 1856.
  • The Evidence by Commission Act, 1859.
  • The British Law Ascertainment Act, 1859.
  • The Admiralty Offences (Colonial Act), 1860.
  • The Foreign Law Ascertainment Act, 1861.
  • The Conveyancing (Scotland) Act, 1874 Section 51.
  • The Evidence by Commission Act, 1885.

Certain Acts of Parliament of India

The Transfer of Property Act, 1882 of India contains the procedural law applicable where the Registration of Titles Act, the Land Titles Act and the Government Lands Act are applied.

English Statutes of General application in Force in England on 12th August 1897

The English statutes of general application passed before 12th August 1897(the reception date), are law in Kenya, unless a Kenyan statute, or a latter English statute made applicable in Kenya, as repealed any such statute. A statute of general application, if repealed by a later English statute would still be law in Kenya. Statutes of general application include public Acts of Parliament, that is, those which apply to the inhabitants at large and which are not limited in their application to prescribed persons or areas. The statutes are also applicable in Kenya in the form that they had at the reception date. Any subsequent amendments of such statutes in England have no effect in Kenya. The only way to alter such statutes is for the Kenya Parliament to amend these by independent legislation.

The Substance of Common Law and Doctrines of Equity

These are only applicable to the Kenyan inhabitants in so far as the circumstances of Kenya permit, subject to such qualifications as those circumstances may render necessary.

African Customary Law

This is applicable only on civil cases where one or more of the parties is subject to or affected by it, in so far as it is applicable and is not repugnant to justice and morality or inconsistent with any other law. African Customary law differs from tribe to tribe.

Islamic Law

This is a very limited source of law in Kenya. It is applied in Kadhi’s Courts when all the parties profess the Muslim religion, but only as to questions of Muslim law relating to personal status, marriage, divorce and inheritance issues.

International Instruments

Though not listed in the Judicature Act, international law is a source of Kenyan law. The government is party to a number of international legal instruments and Kenyans can use these as an additional tool for the advancement of their rights. However, it only becomes enforceable in Kenya after they have been incorporated into our domestic legal system by implementing legislation.

 

Law Reporting

Kenyan Laws

In book form, the Law of Kenya comprises over 500 individual Acts of Parliament and a host of rules and regulations made under the authority of Acts of Parliament, usually referred to as subsidiary legislation. In booklet form, the Law of Kenya runs into over 20,000 pages and is published in over 500 booklets clustered in 15 hard copy binders (the Volumes of the Law of Kenya). These can be purchased from the Government Bookshop, but the statutes are not amended, the amendments can be bought or done at any of the High Court libraries in the Country.

Published decisions of the Courts in Print Form

The earliest Law reports in Kenya were published under the citation E.A.L.R. (East African Law Reports), for the period between 1897 and 1905. There are seven volumes and the reports cover decisions from all courts of different jurisdictions in the then East Africa Protectorate.  Between 1922 and 1956, twenty-one volumes of the Kenya Law Reports (K.L.R) were published. These include decisions of the High Court only. The period between 1934 and1956, the Court of Appeal for Eastern Africa Law Reports (E.A.L.R.) were published. They are twenty- three volumes in total and they report the decisions of the then Court of Appeal of Eastern Africa and of the Privy Council. The East Africa Law Reports (E.A) were introduced in 1957, and were published in nineteen volumes until 1975. They covered decisions of the Court of Appeal of East Africa and the superior courts of the constituent territories, that is, Kenya, Uganda, Tanzania, Aden, Seychelles and Somali Land. The reports went out of publication following the collapse of the east African Community.

 

There were sporadic and transitory attempts at law reporting. Six volumes of the New Kenya Law Reports were published by the East African Publishing House limited, covering and including the years of 1976 to 1980. These reports included the decisions of the High Court and the Court of Appeal of Kenya. The Kenya Appeal reports were later published by Butterworth’s, in two volumes, for the period between 1982 -1992. They cover the decisions of the Court of Appeal of Kenya selected over that period.

 

The Kenya Law Reports (KLR) were re-launched in 2002, with the first volume being the [1981] KLR, under the auspices of the National Council for Law reporting. The reports cover the decisions of both the High Court and the Court of Appeal in Kenya. The Council has published succeeding volumes fro each year since 1981. The East Africa Law reports and the East Africa Court of Appeal reports are published under the joint venture partnership between LawAfrica and LexisNexis Butterworth’s.

Online Legal Information

The Kenya Law Reports eKLR site provides an up to date edition of the Laws of Kenya in a searchable database. It also includes the Kenya Gazette from 2003. The site also has a digital format of the Kenya Law Reports, where one can search for cases from 1971, but printing is not available once a decision has been published in the Kenya Law Reports. The site also has bench updates, which are recent decisions of the High Court and the Court of Appeal that are unreported.

 

LawAfrica has the East Africa Law Reports, LawAfrica Law Reports, East Africa Court of Appeal Reports and the Laws of Kenya. It also has ‘Hot from the bench’, which is an online subscription service that contains recent cases by various courts in the Eastern Africa region.

 

Laws of Kenya provides a comprehensive, up to date collection of laws and subsidiary legislation on pay per minute basis.  Laws current to January 2006 can be downloaded at no charge with an option to buy updates.

 

Kenya Government is the official Kenya Government portal on the web and provides links to sites of various Government Ministries and other state agencies.

Secondary Legal Information

There are a number of legal textbooks written by members of the Kenyan academia, the bench and the bar over the years.  A few important ones include:

 

  • Ahmednasir, M. Abdullahi.  Burial Disputes in Modern Kenya: African Customary Law in a Judicial Conundrum. Fotoform Ltd. Nairobi, 1999.
  • Cotran, Eugene. Restatement of African Law: Kenya. Sweet & Maxwell. London 1968.
  • Ghai, Y.P and McAuslan, J.P.W.B. Public Law and Political Change in Kenya. Oxford University Press, Nairobi, 1970.
  • Harvery, William Burnett. Introduction to the Legal System In East Africa. East African Literature Bureau. Nairobi, 1975.
  • Hodgin, R.W. Law of contract in East Africa. Kenya Literature Bureau. Nairobi, 1975.
  • Kuloba, Richard. Judicial Hints on Civil Procedure 2nd ed. Law Africa Publishing Ltd. Nairobi, 2005
  • Makali, David (ed). Media Law and Practice: The Kenyan Jurisprudence. Phoenix Publishers Ltd, Nairobi, 2003.
  • Mwangi, Paul. The Black Bar: Corruption and Political intrigue in the Kenyan legal fraternity. Oakland Media. Nairobi, 2001.
  • Ogola, John Joseph. Business Law. Focus Books. Nairobi, 1999.
  • Ogola, John Joseph. Company Law. Focus Books. Nairobi, 1997.
  • Ojwang, J.B. Constitutional Development in Kenya: Institutional Adaptation and Social Change. Acts Press. Nairobi, 1990.
  • Okoth-Ogendo, H.W.O. Tenants of the Crown: Evolution of Agrarian Law and Institutions in Kenya. Acts Press, Nairobi, 1991.
  • Onalo, P.L. Land Law and Conveyance in Kenya. Heinemann Kenya Limited. Nairobi, 1986.

Journals

Kenyan legal journals have not been published very consistently.  Some current journals include:

 

  • The Law Society of Kenya Journal (Published by the Law Society of Kenya)
  • The University of Nairobi Law Journal
  • The Lawyer Magazine (A monthly magazine on topical legal issues published by Okland Media Nairobi)

 

The Legal Profession

Kenya established its own institution for the legal education in 1963, shortly before independence – the Kenya School of Law. The school was originally responsible for pre-entry training to the legal profession. In, July 1970, The Faculty of Law, University of Nairobi was established and it became responsible for pre-entry training. A second law Faculty was opened at Moi University in July 1994.  The Kenya School of Law is now concerned with post-graduate training prior to admission to the Roll of Advocates.

 

Lawyers in Kenya are known as Advocates. The legal profession consists not only of Advocates, but also Judges, Resident Magistrates, District magistrates and Law teachers.

 

The rules governing the admission of Advocates of the High Court of Kenya are contained in the Advocates Act (Cap 16) and the Advocates (Admission) Regulations. The position since 1983 is that to be duly qualified, a person requires a University Degree in law that is approved by the Council for Legal Education. Further requirements to be satisfied before a person can be admitted to the Roll of Advocates are:

·       He must serve pupilage for twelve months with an Advocate who has practiced Law in Kenya for a period of not less than five years, or in the Attorney General’s Chambers. (Pupilage involves instructions in the proper business, practice and employment of an Advocate)

·       He must pass, or be exempted from, the qualifying examinations of the Council of Legal Education for admission to the Roll of Advocates. (The Council is the professional examining body for entry to the profession.)

 

After completion and or approval of the Council of Legal Education, the applicant then petitions the Chief Justice of Kenya for admission as an Advocate of the High Court of Kenya. Once admitted to the Roll of Advocates he becomes an officer of the High Court of Kenya.