Show simple item record

dc.creatorKariuki, Francis Kamau
dc.date03/12/2015
dc.dateThu, 12 Mar 2015
dc.dateThu, 12 Mar 2015 16:25:00
dc.dateThu, 12 Mar 2015 16:25:00
dc.date.accessioned2015-03-18T11:29:18Z
dc.date.available2015-03-18T11:29:18Z
dc.identifier
dc.identifier.urihttp://hdl.handle.net/11071/3868
dc.descriptionArticle
dc.descriptionFor a long time, the jurisprudence emanating from Kenyan courts has treated African customary law as an inferior source of law in comparison to formal laws. Consequently, certain customary practices and traditions that can foster social justice and peaceful coexistence amongst communities such as traditional justice systems had not been formally recognized in law. However, the 2010 Constitution recognizes customary law and the use of traditional dispute resolution mechanisms in resolving disputes. It also protects the culture and other cultural expressions of the people. This recognition is important because of the close interlink between traditional justice systems and customary law. In this paper, an examination of previous court decisions dealing with customary law is attempted to glean courts approach to customary law in the past and whether it can influence the application of traditional justice systems in enhancing access to justice. The paper posits that the way courts have interpreted customary law since the advent of colonialism may be a barrier to the application of traditional justice systems. A need therefore arises for courts to develop a jurisprudence that is supportive of customary law and traditional justice systems. A change of mindset and perceptions amongst judges, lawyers and the wider citizenry towards customary law is required if traditional justice systems are to contribute to enhanced access to justice for communities in Kenya.
dc.description.abstractFor a long time, the jurisprudence emanating from Kenyan courts has treated African customary law as an inferior source of law in comparison to formal laws. Consequently, certain customary practices and traditions that can foster social justice and peaceful coexistence amongst communities such as traditional justice systems had not been formally recognized in law. However, the 2010 Constitution recognizes customary law and the use of traditional dispute resolution mechanisms in resolving disputes. It also protects the culture and other cultural expressions of the people. This recognition is important because of the close interlink between traditional justice systems and customary law. In this paper, an examination of previous court decisions dealing with customary law is attempted to glean courts approach to customary law in the past and whether it can influence the application of traditional justice systems in enhancing access to justice. The paper posits that the way courts have interpreted customary law since the advent of colonialism may be a barrier to the application of traditional justice systems. A need therefore arises for courts to develop a jurisprudence that is supportive of customary law and traditional justice systems. A change of mindset and perceptions amongst judges, lawyers and the wider citizenry towards customary law is required if traditional justice systems are to contribute to enhanced access to justice for communities in Kenya.
dc.languageeng
dc.publisherKariuki Muigua & Co. Advocates
dc.rightsBy agreeing with and accepting this license, I (the author(s), copyright owner or nominated agent) agree to the conditions, as stated below, for deposit of the item (referred to as .the Work.) in the digital repository maintained by Strathmore University, or any other repository authorized for use by Strathmore University. Non-exclusive Rights Rights granted to the digital repository through this agreement are entirely non-exclusive. I understand that depositing the Work in the repository does not affect my rights to publish the Work elsewhere, either in present or future versions. I agree that Strathmore University may electronically store, copy or translate the Work to any approved medium or format for the purpose of future preservation and accessibility. Strathmore University is not under any obligation to reproduce or display the Work in the same formats or resolutions in which it was originally deposited. SU Digital Repository I understand that work deposited in the digital repository will be accessible to a wide variety of people and institutions, including automated agents and search engines via the World Wide Web. I understand that once the Work is deposited, metadata may be incorporated into public access catalogues. I agree as follows: 1.That I am the author or have the authority of the author/s to make this agreement and do hereby give Strathmore University the right to make the Work available in the way described above. 2.That I have exercised reasonable care to ensure that the Work is original, and to the best of my knowledge, does not breach any laws including those relating to defamation, libel and copyright. 3.That I have, in instances where the intellectual property of other authors or copyright holders is included in the Work, gained explicit permission for the inclusion of that material in the Work, and in the electronic form of the Work as accessed through the open access digital repository, or that I have identified that material for which adequate permission has not been obtained and which will be inaccessible via the digital repository. 4.That Strathmore University does not hold any obligation to take legal action on behalf of the Depositor, or other rights holders, in the event of a breach of intellectual property rights, or any other right, in the material deposited. 5.That if, as a result of my having knowingly or recklessly given a false statement at points 1, 2 or 3 above, the University suffers loss, I will make good that loss and indemnify Strathmore University for all action, suits, proceedings, claims, demands and costs occasioned by the University in consequence of my false statement.
dc.subjectCustomary Law Jurisprudence
dc.subjectTraditional Justice Systems
dc.subjectlaw
dc.subjectKenya
dc.titleCustomary law jurisprudence from Kenyan courts: implications for traditional justice systems
dc.typeArticle


Files in this item

Thumbnail

This item appears in the following Collection(s)

  • SU Scholarly Articles [88]
    Assorted scholarly writings by University Staff outside of specific faculty affiliation

Show simple item record