Sources of Kenyan Law (2)

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Law in the Kenyan context is a binding rule of conduct enforced by the state through courts, drawn from a defined set of sources of Kenyan law: the Constitution 2010, Acts of Parliament, subsidiary legislation, received English common law and doctrines of equity (via the Judicature Act Cap 8), African customary law, and Islamic law. The hierarchy of courts begins with the Supreme Court at the apex, followed by the Court of Appeal, the High Court (with its specialised divisions — Environment and Land Court, Employment and Labour Relations Court), and subordinate Magistrates’ and Kadhis’ courts. Stare decisis binds lower courts to decisions of higher courts; the operative reasoning is the ratio decidendi, while remarks made in passing (obiter dicta) are only persuasive. Legal problems are usually solved using the IRAC method — Issue, Rule, Application, Conclusion.

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Sources of Kenyan Law

Kenya does not have a single codified list, but section 2 and Schedule Six of the Judicature Act (Cap 8) together identify the operative sources. The Constitution 2010 is the supreme law under Article 2 — any inconsistent Act or custom is void to the extent of the inconsistency. Below the Constitution sit Acts of Parliament passed by the National Assembly and Senate, and subsidiary legislation (regulations, by-laws, rules) made under enabling Acts and published in the Kenya Gazette to take legal effect. English common law and doctrines of equity, along with Halsbury’s Laws of England, are “received” subject to local adaptation. African customary law applies only where the parties have consented or where statute directs, and is subject to the Constitution and any written law (Article 160, Constitution 2010). Islamic law applies in matters of personal status for Muslims before Kadhis’ courts.

Classification of Law

Public vs Private — public governs the state and individuals in their public capacity (criminal, constitutional, administrative); private regulates relations between private persons (contract, tort, property, succession).
Substantive vs Adjective — substantive creates rights and duties; adjective (procedural) prescribes how those rights are enforced (Civil Procedure Act, Criminal Procedure Act).
Civil vs Criminal — civil disputes are resolved by compensation or declaration; criminal matters are prosecuted by the State and can attract imprisonment.
Municipal vs International — municipal law operates within Kenya; international law applies at the inter-state level and becomes binding only on domestication under Article 2(6).

Court Hierarchy and Precedent

The Supreme Court is the final appellate court on all matters (Article 163). Below it sits the Court of Appeal, then the High Court and its specialised divisions, then the subordinate courts (Magistrates’ and Kadhis’). Under stare decisis, a Magistrates’ court is bound by the High Court, which is itself bound by the Court of Appeal and Supreme Court; the High Court is bound by its own earlier decisions unless they are “impractical or unjust”. Every reported judgment contains a ratio decidendi (the binding reason for the decision) and obiter dicta (persuasive remarks not necessary to the ruling).

Legal Reasoning: The IRAC Method

The standard approach for analysing legal problems:

Issue — identify the precise legal question raised by the facts.
Rule — state the relevant law (statute, decided case, customary rule).
Application — apply the rule to the facts, distinguishing or following earlier authorities as appropriate.
Conclusion — state the likely outcome, citing authority.

Common Exam Patterns

Typical multiple-choice items test whether the candidate can identify the correct source of law, the correct court in a precedent chain, or whether a quoted passage from a case is ratio or obiter. Short-answer questions commonly ask for an explanation of why the Constitution prevails over a conflicting statute, or why a High Court decision is not binding on the Court of Appeal.

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Edge Cases and Constitutional Tensions

Before 2010, Kenya operated under a parliamentary-supremacy model inherited from the Westminster tradition; Article 2(4) now declares any law inconsistent with the Constitution to be void ab initio. Candidates often assume older Acts are still valid — but courts will strike down provisions that conflict with Chapter Four (Bill of Rights) even if the statute was enacted decades earlier. Note also Article 259(1), which requires interpretation of the Constitution to promote its purposes, values and principles — a directive that has overridden literal readings in several High Court and Supreme Court rulings.

A second edge case involves customary law repugnancy. Under Article 160(3) and section 3 of the Judicature Act, customary law that is repugnant to justice and morality or incompatible with any written law cannot apply. Candidates commonly assume customary law governs all rural Kenyans; in fact, personal law rules under the Law of Succession Act (Cap 160) and Marriage Act 2014 determine whether customary, statutory, or Islamic rules apply to a particular family dispute.

Distinguishing, Overruling, and Reversing Precedent

The doctrine of binding precedent is not static. A higher court may overrule an earlier decision of itself (rare, but seen in Supreme Court constitutional rulings) or of a lower court. An appellate court hearing the same matter reverses the lower decision. A court of equal coordinate rank distinguishes when the facts of the earlier case are materially different. In Shivraj Singh Chandran v Republic (2018) the Court of Appeal reassessed earlier sentencing guidelines, an example of flexible precedent operation candidates should recognise.

Connections to Adjacent Topics

This topic underpins Topic 1 (Constitutionalism) and the subjects tested in the Reasoning and Logic component of the aptitude test, where IRAC translates directly into structured argument construction. Equity maxims — “equity follows the law”, “he who seeks equity must do equity”, “delay defeats equity” — recur in succession, trust, and contract questions.

Common Mistakes

Treating every statement in a judgment as binding; only the ratio decidendi binds.
Confusing sources of law (where law comes from) with branches of law (areas such as contract, tort, criminal).
Citing cases by party name only — always include year and court (e.g., Mumo Matemu v Trusted Society of Human Rights Alliance, Supreme Court of Kenya, 2013).
Assuming English common law automatically applies; it is “received” only where Kenyan law is silent and where local conditions permit.

Practice Prompts

Brief: A litigant alleges that a section of the Public Order Act violates her freedom of assembly under Article 37 of the Constitution. Map the analysis using IRAC, identifying the constitutional supremacy principle that decides the outcome.
Multiple-choice reasoning: A High Court judge wishes to depart from her own earlier ruling on a point of statutory interpretation. Explain when this is permitted and which doctrine she must apply to justify the departure.

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Sources of Kenyan Law (2)