Sources of Law Under Article 2

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Topic 7 introduces the building blocks of Kenyan jurisprudence: what law is, where Kenyan courts draw it from, and how the courts themselves are stacked. The single most-tested idea is the closed list of sources of law in Article 2 of the Constitution of Kenya 2010.

Article 2 sources: Constitution, Acts of Parliament, common law, doctrines of equity, African customary law, Islamic law, and English statutes of general application in force before 12 August 1897.
Court hierarchy peak: Supreme Court sits at the top, with decisions binding every lower court.
Public vs private law: public regulates the state and citizens (constitutional, criminal, administrative); private regulates person-to-person relations (contract, tort, property, family).

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Definition and Nature of Law

Law is a body of rules imposed and enforced by the state to regulate human conduct, settle disputes, and maintain order. Kenyan jurisprudence treats law as positive (made and enforced by human authority) rather than purely moral or natural. Two functional splits run through the syllabus: substantive law (creates rights and duties, e.g. the Law of Contract Act) versus procedural or adjective law (prescribes how those rights are enforced, e.g. the Civil Procedure Act); and municipal law (binding within Kenya) versus international law (treaties and customary international rules, which Article 2(6) requires the state to respect).

Sources of Law Under Article 2

Article 2 of the Constitution exhaustively lists the recognised sources. Any rule outside this list has no automatic legal force in Kenya. The Constitution itself is the supreme source under Article 2(1)–(2): any law inconsistent with it is void to the extent of that inconsistency.

Source	Origin / Scope
Constitution of Kenya 2010	Supreme law; prevails over every other source
Acts of Parliament	Statutes enacted by the National Assembly and Senate
Common law	Judicially developed principles inherited from England
Doctrines of equity	English equitable remedies adapted to Kenya
African customary law	Applies only where not repugnant to justice/morality or inconsistent with any written law
Islamic law	Applied by Kadhis’ Courts to Muslim personal-status matters
English statutes of general application	Only those in force in Kenya on 12 August 1897

Classification and Court Hierarchy

Kenyan law divides into public law (constitutional, criminal, administrative) and private law (contract, tort, property, family, succession). Courts are stacked vertically, and lower courts are bound by decisions of higher courts through the doctrine of binding precedent.

Tier	Court	Jurisdiction Highlight
1	Supreme Court	Highest court; binds all others; exclusive original jurisdiction on presidential election petitions
2	Court of Appeal	Appeals from High Court and comparable courts
3	High Court, Environment & Land Court, Employment & Labour Court	Unlimited civil and criminal jurisdiction; constitutional enforcement
4	Magistrates’ Courts	Limited civil (statutory monetary cap) and summary criminal jurisdiction
5	Kadhis’ Courts	Muslim personal status (marriage, divorce, inheritance) where parties consent
6	Tribunals, Courts Martial	Special statutory and disciplinary matters

Common Traps to Avoid

Confusing any English statute with the law of Kenya; only pre-12 August 1897 statutes of general application survived reception.
Assuming African customary law applies automatically — it must first be pleaded and proved as a fact, and may be excluded for repugnancy.
Forgetting that Kadhis’ Courts cannot hear criminal or commercial disputes, only personal-status matters.

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Mechanism: Why Article 2 Functions as a Closed List

Article 2(4) was a deliberate break from the old received English-law regime of the 1897 India-style reception clause. By enumerating sources and capping English statutes at the 1897 cutoff, the framers ensured future statute law could only enter Kenya through Parliament, not through English Acts. This forces lawyers to argue that any post-1897 English doctrine either forms part of the common law (which can evolve judicially) or has been specifically enacted locally. Candidates should expect MCQs that test whether, for example, the Misrepresentation Act 1967 (English) applies in Kenya — it does not automatically, because it post-dates 1897 and Parliament never adopted it.

Devolution, Judicial Independence, and the JSC

The 2010 Constitution layered two further doctrines on top of Article 2:

Separation of powers between Parliament (legislative), the Executive (Cabinet), and the Judiciary — each defined in Chapter Eight.
Devolution under Chapter Eleven, which created 47 county governments with their own legislative and executive authority, expanding the number of potential law-making bodies whose Acts now rank as a recognised source.

The Judicial Service Commission (Article 172) recommends judges and enforces judicial independence so courts can strike down unconstitutional Acts without political pressure.

Worked Example: Identifying the Source

Question (style): A litigant argues that the English Contracts (Rights of Third Parties) Act 1999 forms part of Kenyan law by reception. Is this correct?

Reasoning: The Act was enacted in 1999, well after the 12 August 1897 cutoff in Article 2(5). It therefore cannot enter Kenyan law as a received English statute. It would only apply if Parliament enacted equivalent legislation or if Kenyan common law independently developed the principle. The litigant’s argument fails.

Practice Prompts

List the seven sources of law in the order they appear in Article 2 and identify which one conditions its application on the repugnancy test.
A magistrate convicts an accused under a county by-law challenged as inconsistent with the Constitution. Which Article 2 provision governs the outcome, and which court finally determines the question?

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Sources of Law Under Article 2