Fiction, reality or somewhere in between? An Examination of the application of African Customary Law in the customary marriage legal regime in Kenya

Abstract

Following a prolonged period of marginalisation, marriages contracted under customary law are now constitutionally and statutorily recognized in Kenya. Moreover, their equal status to other forms of marriages continues to be emphasized by the Kenyan Judiciary. Despite these positive developments, there still exists a particular problem plaguing the practice of African Customary Law (ACL) within the customary marriage legal regime in Kenya, which forms the subject matter of this dissertation. Upon examination of recent jurisprudence from the Kenyan courts, it appears that courts are subjecting ACL to the methods of legal reasoning inherited from colonisation. These reasoning templates can be considered inconsistent with the nature of customary law, hence begging the question whether the application of ACL by the Kenyan courts is a reality. This study argues that ACL is not applied by the Kenyan Courts within the customary marriage legal regime in Kenya post the promulgation of the 2010 Constitution (post-2010). It finds that ACL has instead been substituted by an inauthentic version of customary law that cannot be properly called ACL. The study proceeds to propose two solutions, which are the application of Traditional Dispute Settlement Mechanisms (TDRMs) in customary marriage disputes and a guiding criterion for the ascertainment of the content of customary law within the formal court system. This study adopts a qualitative methodology, placing key reliance on secondary sources such as books and journal articles. Primary sources such as case law on customary marriages and laws such as the Constitution of Kenya and the Marriage Act (2014) are relied on.