The Place of Customary Law in the Hierarchy of Legal Norms in Kenya
Date
2021-03
Authors
Mutugi, Nyaga Dominic
Journal Title
Journal ISSN
Volume Title
Publisher
Strathmore University
Abstract
The 2010 Kenyan Constitution, unlike the independence Constitution, endorses the significance of customary law and provides for its application within the legal system. The operative integration of customary law is provided for by Article 2(4) and given further credence by Article 159(2)(c). These constitutional provisions entrust the courts with a specific mission to apply and interpret
customary law to promote access to justice. However, the jurisprudence emanating from the courts confirms that Kenyan judges give precedence to state law over customary law.
Description
Before the onset of colonial rule in Kenya, access to justice was achieved through customary law in its broad sense, not only within families but within clans and, as far as possible, between clans. Internally within the community there was greater reliance on uncodified law and traditional precedent.1 The advent of colonial rule was marked by the doctrinal alteration of rules and
principles of African communities in order to blend it with English inspired state laws. Throughout this period, customary law was expressly subjugated to English principles of common law which to a great extent informed colonial enactments.