In Kenya, the sources of law are primarily derived from Section 3 of the Judicature Act (Cap 8) and the Constitution of Kenya (2010).
These sources can be classified into four main categories:
1. Constitutional & Written Laws (Primary Sources)
These are the foundational written laws that apply to everyone in the country.
The Constitution of Kenya (2010): The supreme law of the land. Any law or conduct inconsistent with it is void to the extent of the inconsistency.
Acts of Parliament (Statutes): Written laws enacted by the National Assembly and the Senate.
Delegated (Subsidiary) Legislation: Rules, regulations, by-laws, or orders made by bodies or individuals (like Cabinet Secretaries or local authorities) who have been given lawmaking power by Parliament.
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2. Received English Law
Due to Kenya’s colonial history, specific aspects of English law are incorporated into the legal framework, provided they do not conflict with local written laws:
English Statutes of General Application in force in England on August 12, 1897 (the reception date).
The Substance of Common Law (principles built up by English courts over centuries).
Doctrines of Equity (fairness-based legal principles developed by the English Court of Chancery to soften the rigid rules of common law).
Specific Acts of the UK Parliament explicitly listed in the Schedule of the Judicature Act.
3. International Law
Under Articles 2(5) and 2(6) of the 2010 Constitution, Kenya adopted a monist approach, making international law directly applicable:
General Rules of International Law.
Treaties and Conventions ratified by Kenya.
4. Customary and Religious Laws (Subsidiary & Personal Sources)
These sources are limited in scope and generally apply only to civil matters or specific groups of people:
African Customary Law: Applies in civil cases where one or more parties are subject to or affected by it. It must not be inconsistent with the Constitution or any written law, nor "repugnant to justice and morality".
Islamic (Kadhis) Law: Applies to the determination of questions of Muslim law relating to personal status, marriage, divorce, or inheritance in cases where all parties profess the Muslim religion.
Hindu Law: Applies to personal law matters (like marriage, divorce, and succession) among members of the Hindu community under specific statutes (e.g., the Hindu Marriage and Divorce Act).
5. Judge-Made Law (Judicial Precedent)
Case Law / Precedent: Decisions made by superior courts (the High Court, Court of Appeal, and Supreme Court). Under the doctrine of stare decisis, decisions of higher courts are binding on lower courts.
