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An introduction to the laws of Kenya
The Kenya legal system has its foundation in the British common law system. The legal system is bi-jurisdictional, as the responsibilities of public (includes criminal) and private law are separated. Criminal prosecutions are conducted in the style of the British common law. There is also a customary law system inherited from indigenous Africans (often termed African Customary Law, of which there are many variations depending on the tribal origin).
Constitution of Kenya
Kenya's constitution is its supreme law, and any law passed by any county, provincial, or territorial government that is inconsistent with the constitution is invalid.
Court system in Kenya
The Kenyan court system is organised hierarchically, and consists of (from lowest to highest legal authority): Magistrates' Courts; High Courts; a Supreme Court of Appeal, the highest authority in non-Constitutional matters; and a Constitutional Court, which is the highest authority in constitutional matters. The Constitutional Court has final authority to decide whether an issue is Constitutional or not. Certain specialised courts have also been provided for by the legislature, in order to avoid backlog in the main legal administration infrastructure. Among these is the Small Claims Court, which resolves disputes involving small monetary sums. In addition, African indigenous courts, which deal exclusively with indigenous law, also exist.
Legal Traditions
Common law
All courts in Kenya, follow the common law legal tradition. Equally, courts have power under the provincial Judicature Acts to apply equity.
As with all common law countries, Kenyan law adheres to the doctrine of stare decisis. Lower courts must follow the decisions of higher courts by which they are bound. Only the Supreme Court of Canada has authority to bind all courts in the country with a single ruling.
When there is little or no existing Kenyan decision on a particular legal issue and it becomes necessary to look to a non-Kenyan legal authority for reference, decisions of English courts are often utilized. In light of the long standing history between English law and Kenyan law, the English Court of Appeal and the House of Lords are often cited as and considered persuasive authority, and are often followed.
Decisions from Commonwealth nations, aside from England, are also often treated as persuasive sources of law in Kenya.
The Kenyan Legislature
With a system similar to the United States and Great Britain, laws in Kenya are written and passed by their legislature, called the National Assembly. There are 224 seats in the Assembly, with 210 of them as elected representatives from all of Kenya's constituencies. The remaining 14 seats are directly appointed by the president himself.The Kenya Judiciary
The judiciary is the body of judges and courts where the laws are upheld, and those breaking the laws are prosecuted. There are 8 sections of the judiciary, each with courts to handle different types of law. The courts cover civil, criminal, family, commercial, constitutional/judicial review, anti-corruption, city/municipal and children's laws.The highest level of authority within the judiciary is the Court of Appeals, which hears cases only after they have already been through the High Court. Most average civil or criminal cases are tried through the lower Magistrate courts.
Overall, the judiciary is separate and independent from both the executive and legislative branches of the government. Influence from either body still exists, and the judiciary has not been free of corruption accusations along with the rest of the government.
SOURCES OF LAW OF KENYA
The term sources of law literally means where rules of law are found and the origins of the rules and principles which constitute the law applicable in Kenya. In other words the materials from which rules of law are developed.
The various sources of law of Kenya are identified by:-1. Judicature Act
2. Constitution
3. Hindu marriage and Divorce Act
4. Hindu Succession Act
5. Kadhis Court Act.
Sources identified by the Judicature Act.
1. The Constitution
2. Legislation (Act of Parliament) (Statutes)
3. Delegated legislation
4. Statutes of General Application
5. Common law
6. Equity
7. Case law or (judge – made law)
8. Africa Customary law
Areas of Kenya law
- Administrative law
Kenyan administrative law is the body of law that addresses
the actions and operations of governments and governmental agencies.
- Contract law
Individual provinces have codified many of the principles in
a Sale of Goods Act, which was modeled on early English versions.
- Constitutional law
Constitutional law is the area of Kenya law relating to the
interpretation and application of the Constitution of Kenya by the Courts.
- Copyright law
Copyright law of Kenya governs the legally enforceable
rights to creative and artistic works under the laws of Canada.
- Criminal law
Most criminal laws in Kenya have been codified in the
Criminal Procedure Code of Kenya and the penal code.
- Evidence law
Kenya Evidence Act is an Act of the Parliament of Kenya,
that regulates the rules of evidence in court proceedings.
- Family law
Family law in Kenya concerns the body of Kenya law dealing
with family relationship, marriage, and divorce.
- Immigration and refugee law
Kenya immigration and refugee law' concerns the area of law
related to the admission of foreign nationals into Kenya, their rights and
responsibilities once admitted, and the conditions of their removal.
- Inheritance law
Inheritance law in Kenya is governed by the law of succesion
Act which sets out the procedure for division of property upon death.
- Labour and employment law
Kenyan labour law is that body of law which regulates the
rights, restrictions obligations of trade unions, workers and employers in
Kenya. Kenyan employment law is that body of law which regulates the rights,
restrictions obligations of non-unioned workers and employers in Kenya
- Patent law
Kenyan patent law is the legal system regulating the
granting of patents for inventions within Kenya, and the enforcement of these
rights in Kenya
- Procedural law
The functioning of the Courts is regulated by the laws of
civil procedure which are codified in the civil procedure code.
- Property law
Property law in Kenya is the body of law concerning the
rights of individuals over land, objects, and expression within Kenya. It
encompasses personal property, real property, and intellectual property.
- Tort law
Tort law in Kenya concerns the treatment of the law of torts
within the Kenyan jurisdciction.
- Trade-mark law
Kenyan trademark law provides protection for distinctive
marks, certification marks, distinguishing guises, and proposed marks against
those who appropriate the goodwill of the mark or create confusion between
different vendors' goods or services.
Other laws include:Human rights law,customary law,law of
persons,environmental law,law of partnerships and trust,company law,law of
agency