Legal transplantation and its effects of customary law in Kenya: The case of marriage

Date
2021
Authors
Staussi, Jamie Eric
Journal Title
Journal ISSN
Volume Title
Publisher
Strathmore University
Abstract
At the time where Kenya was part of the United Kingdom’s colonial empire, the United Kingdom with the aim of easier administration of the Kenyan population introduced its own legal system, the common law, and in doing so engaging in the process called Legal Transplantation. Legal Transplantation refers to the borrowing or movement of one legal system from one country to another. By this process, the United Kingdom relegated the rules and norms that guided indigenous institutions in general, and marriage in particular below State law. This implementation of a foreign legal system negatively affected the institution of marriage which will be the focus of the research. It changed for instance the very definition of marriage, caused the breakup of families, and confused or blurred the process of succession. The negative effect introduced a challenge that the legislator needed to solve. That is why in 1967 the legislator set a commission to harmonize legal provisions on marriage as much as possible. In 2010 The new Constitution of Kenya sought to increase the protection of marriage and, in response to the constitutional provision, in 2014 parliament passed the current Marriage Act2.This research will analyse and compare the effects of the introduction of common law on the institution of marriage, the subsequent relegation of customary law as well as the post-colonial attempts by the Kenyan legislator to create greater space for customary law in order to protect this institution. The study will use the qualitative analysis of the problem through case law, and secondary sources to assess the impact of the transplanted legal system and the corrective customary law on the institution of marriage.
Description
Submitted in partial fulfilment of the requirements of the Bachelor of Laws Degree,Strathmore University Law School
Keywords
Citation