There is nothing strange or peculiar about this situation. In England, for example, the general customs of the English people constitute a major source of English law which is known as the common law.
It also applied the common law of England which was in force at the time. Insofar as the natives were concerned the Order in Council had limited application it provided that cases against natives would be brought in native courts and a Commissioner was given the power to establish and abolish those Native Courts and to regulate their procedure as well as give directions as to the application of native law and custom.
As a result of this power, the commissioner made the native court regulations of and what these regulations provided was that in matters affecting the personal status of natives, then the law of their caste or tribe insofar as it could be ascertained and insofar as it was Sources of kenyan law repugnant to national morality could be applied.
For those natives who were Muslims, Islamic Sources of kenyan law would apply to them and this was with regard to matters affecting personal status. This same formulation is what we basically find in our judicature Act insofar as the application of customary law is concerned.
The provisions were further modified but the origins are Native Courts Regulations. There were also two other communities in Kenya at the time, the British Colonisers and the Indians who had been brought in as labour and the issue here was whether for those groups they applied Indian Act or British Laws and common law rules were applied.
The Indian Law was basically British law that had been passed in India and there was not much difference between the two, they were obviously geared for application to the British Settler but did they apply to the Hindu?
The assumption was that in Kenya, they would apply. In India it had been expressly stated that that particular Act did not apply to succession matters of Hindus in which case in India they applied their customary succession laws in matters of succession.
When this particular Act was applied in Kenya there was no such exclusion with regard to the Kenya Hindus. There were also issues as regards marriage and divorce and they applied English Marriage Laws. There was a bit of problem with regard to the Hindus in Kenya especially between and when it was stated that the Indian Succession Act did not apply to Hindus and that they were to be governed by their own customary law.
For those Hindus who had converted to Christianity, two Acts were passed to cater for their succession, the Hindu Wills Act and the Probate and Administration Act of India, the assumption was that the orthodox Hindus applied their customary law in matters of succession. As early as we have all these laws governing different peoples.
In we got the East Africa Order in Council of whose main purpose was to clarify further when customary law applied. It was stated that in all cases whether civil or criminal in which natives were parties, the courts would be guided by native law in so far as it was applicable and not repugnant to justice and morality or inconsistent with any law made in the protectorate.
This formulation of the Order in Council is the same formulation that we have in Section 3 of our Judicature Act insofar as application of customary law is concerned.
In areas of family law for those natives who still practice customary law are still governed by African Customary Law. Muslims still continue to be governed by Muslim Law but with Hindus a number of developments occurred which made the Hindus to adopt laws that were similar to those found in the statues.
The Order in Council gave the commissioner power to make laws which would apply in the protectorate and one of the first laws that was made in was the Marriage Ordinance. This Ordinance was a law of general application in the sense that it was not limited by race or religion and was meant to apply to all residents in the protectorate.
It provided for basically a Christian form of marriage which was strictly monogamous and made it an offence for a person married under customary law to contract a marriage under the ordinance or vice versa. It was also meant to provide an avenue for the converted natives to contract the Christian type of marriage and for the settlers to contract marriage.
What was important is that any African who married under the Marriage Ordinance was supposed to have embraced the Christian way of life and therefore distanced herself from their customary way of life.Sources of law are the origins of laws, the binding rules that enable any state to govern its territory..
The term "source of law" may sometimes refer to the sovereign or to the seat of power from which the law derives its validity. Sources of Kenyan Law Essay Sample.
The term sources of law literally means where rues of law are found. This chapter describes the origins of the rules and principles which constitute the law applicable in a country at a given time.
this article talks of the sources of Kenya law by msagaliwa. this article talks of the sources of Kenya law. Explore. Summarizing the above quoted Section 3, leaves us with the following list of the sources of Kenyan law: 1. The Constitution. Documents Similar To Sources of Kenya Laws-modified for Ccm on (1) Skip carousel 1/5(3).
The government of Kenya has a lot of places that it uses to pass and amend the laws to be followed by the citizens of the country. The following list comprises some of the major sources of law in the country.
Jul 13, · sources of kenya law A source of law is the origin of the rule, which constitutes a law, or legal principle. The phrase `sources of Kenya law' therefore means the origin of the legal rules which constitute the law of Kenya. The following list comprises some of the major sources of law in the country.
The constitution It is a formal document that defined the rules and regulations, functions and roles of the various government state bodies and the relation between them and the public.