Introduction to

KENYAN LAW
Lilian Oduor and Hussein Khalid

Illustrations by Stanislaus Olonde (Stano)

Designed and Printed by CLAPS Enterprises

Introduction to Kenyan Law

What is Law ?

S everal definitions have

been put forward to
explain what law is.
Generally, law is any set of rules
that guide the conduct of
individuals/groups in a given
set up and is enforced by those
in authority. They include the
Constitution, Acts of
Parliament and/or rules. Law
may start from the family and
community levels, to national
and international levels.

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At the family level, there are rules
and/or laws that guide the behavior
of the members for purposes of
ensuring cohesiveness. For example,
it may be the rule that the father is
the head of the house or that all
children must be home before dark.
At the comunity level, there may be
rules for example stating that a
certain person is the head of the
village or that youth must always be
respectful to the elderly.

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At the national level, laws are
mainly agreed upon through
legislative processes/organs
(parliament) and include
matters related to how
people will be governed.
National laws are usually
passed by representatives of
the people such as Members
of National Assembly and
Senate.

Laws can be written or Kenya National Assembly in Session

unwritten.

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 Sources
of Law Religious books
African customary laws
Precedents

The body vested with the responsibility of making

A s a country, Kenya has

laws that govern its
operations. These laws
are found in different sources.
The sources are classified into
laws in Kenya is the parliament which consists of the
senate and the national assembly.

primary and secondary sources.

The primary sources of
Kenyan law are:

The Constitution
Acts of Parliament
The secondary sources of
Kenyan law are:
By laws (County laws)
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The body vested with the responsibility of interpreting the law and passing judgments on
matters related to law is the judiciary (courts).

KUZE LAW COURTS

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The body vested with the responsibility of enforcing the law and ensuring full adherence is
the Executive which includes the police and prisons.

You are
under arrest for the
murder of Mr X
contrary to section
203 of the penal code

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Primary Sources
of Law
The Constitution

T he Constitution is the supreme law

of the land. It has been given
priority over all other laws both
written and unwritten such that if any law is
inconsistent with the Constitution, then
that law becomes null and void to the extent The Kenyan Constitution was promulgated in
of the inconsistency. August 2010 and has 18 Chapters, 264
Articles and 6 Schedules.
The Constitution sets out how a nation and
its citizens are to be governed. It is a social The biggest chapter in the Constitution of
contract between the people and those in Kenya is Chapter 4 - Bill of Rights which
authority. It brings unity in the country and provides in Article 20 (1) that the Bill of
ensures justice and equity for all its citizens Rights applies to all law and binds all state
without discrimination. organs and all persons.

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 Because of its very nature of comprising of
Primary Sources individuals representing the people,

of Law Parliament is the organ vested with the

responsibility of making, amending and
revoking laws.

Acts of Parliament It is assumed that whenever laws are made,

then the people are consulted and informed
through their representatives in parliament.

A cts of parliament are also known

as legislations. They are laws
enacted by parliament (senate and
national assembly) to give life to the
Constitution and establish a legal regime
It is for this reason that ignorance of law
is no defense.

that is just, fair and reasonable to all.

Acts of parliament are meant to conform

to the letter and spirit of the Constitution.
Therefore they cannot contradict the
Constitution but rather support its
operationalisation and implementation.

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Acts of parliament are many
and vary in size and content.
They cover all aspects of life be
they social, economic or
political.

Some of the most known/used

acts of parliament in Kenya ACTS
include: OF
PARLIAMENT

Penal code
Criminal procedure code
Sexual offences Act
Children’s Act
Judicature Act
Land Act
Evidence Act
Civil Procedure Act

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SECONDARY SOURCES OF LAW
By-laws - These are laws enacted by other organs of the government such as county
assemblies. They are binding within their geographical areas of jurisdiction and can vary from
one county to another or a given local authority. By-laws cannot contradict national laws and
the Constitution.

Religious Books - A good portion of what is today considered to be secular law has its origin in
canon (church) law. For example, the law that criminalizes polygamy is derived from canon law.
In Kenya, the Kadhis courts strictly apply shariah law on personal matters of marriage, divorce
and inheritance when both parties profess Islam as their religion.

African Customary Law - In Kenya, African customary laws are recognized as a source of law
and vary from one community to another. Kenyan courts are allowed to be guided by
customary laws but only in civil cases and where parties to the suit are either subject to or
affected by it. Customary law used by the courts should not be repugnant to justice and
morality. For example, while female genital mutilation (FGM) is recognized by certain African
customary laws, since the practice is outlawed by existing legislation, it cannot be allowed to
continue in the name of practicing customs and traditions.

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Precedents - These are also known as case law or authorities. Precedents can be authoritative
(binding i.e. supreme court cases) or persuasive (not binding but can be adopted if supported
by strong legal argument). The decisions made by superior courts of records are binding to all
other lower courts. Where the courts pass judgment on particular facts of a matter, that
judgment can be used later as part of law. Particularly when it is on an issue that has no law
directly linked to it. Precedents have to be backed by sound legal arguments.

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 Purpose
of Law
L aw is vital in any given group or society as
it brings sanity and ensures each person is
treated equally and gets the chance to
advance in life.
It provides for crimes that will not be
tolerated and any person who engages in
such crime is punishable under
the law.

Importantly, the law exists to protect rights and The law maintains order in society by
freedoms of individuals and groups. ensuring individuals and groups do not
exceed the prescribed limits acceptable
The Constitution and other laws provide for by all.
these rights and freedoms and in the event they
are violated, the law comes in to restore them When limits are exceeded then the law
and ensures those responsible are punished. comes in to restore the balance and
bring semblance of order.
The law sets minimum standards that
guide individuals and groups behaviours.

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The law is also useful in resolving disputes The purpose
between individuals and groups or entities. of law is to
In a society where people have different protect me
values, needs and aspirations, disputes are
inevitable. When these disputes arise,
then the law comes in to ensure their
resolution and brings justice to all parties
involved.

Because of the above reasons, it is then vital

for any group/society to have laws. These
laws must be agreed upon and should always
be applied equally to all persons.

The rule of law dictates that each action of

individuals and their leaders must be guided
by law and not personal wants and desires.

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CATEGORIES OF LAW
There are two main categories of law:
Criminal law
Civil law

CRIMINAL CIVIL
LAW LAW

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Criminal law

This category of law deals with

actions that cause intentional harm
to individuals, groups or property.
Examples of such actions include:
Stealing
Assault
Killing

Although such acts often target

specific individual(s), they are
considered in a larger sense to be
acts against all people.

As a result, society, through the law

enforcers such as police, come in to
restore order.
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For one to be guilty under criminal law, it has to be proven that they had the intention to do the
harmful act (mens rea) and that they actually did perform the harmful act (actus reus). In determining
guilt of an act of crime, courts must be convinced beyond reasonable doubt that indeed the crime
took place.

CRIMINAL PROCESS

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 Civil law

T his category of law deals with disputes between private individuals and groups. It considers
matters that are not directly connected to the general well being of all persons but
nevertheless are important to the parties involved. In civil law, law enforcers such as police
are not directly involved.
Guilt in civil law cases is
determined on a balance of
probability. This is to say if the
courts are convinced that from the
evidence produced it is more likely
than not the act was committed,
then it is enough to pass judgement
against the person/group. Though
the actual truth may never be
known, the court weighs the
evidence tendered and decides All are equal
before the law
which version of evidence is
probably true.
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INTERNATIONAL LAW IN KENYA

A part from making its own laws, Kenya has ratified international laws and incorporated
them in its domestic law. Article 2(5) of the Constitution of Kenya states that “The
General rules of International Law shall form part of the Law of Kenya.” Article 2(6)
further stipulates that “Any treaty or convention ratified by Kenya shall form part of the
Law of Kenya under this Constitution.” Kenya has ratified various international
treaties/conventions including the following:
No. Treaty Date of Ratification

1 International Covenant on Civil and Political Rights (ICCPR) 1st May 1972

2 International Covenant on Economic, Social and Cultural Rights 1st May 1972
(ICESCR)
3 Convention on Elimination of all forms of Discrimination against Women 9th March 1984
(CEDAW)
4 Convention on the Rights of a Child (CRC) 31st July 1990

5 The African Convention on Human and Peoples Rights (ACHPR) 10th February 1992

6 Convention Against Torture (CAT) 21st February 1997

7 The Rome Statute 15th March 2005

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Personal Notes

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