Lesson 1, Topic 1 of0

1.9 African customary law

The principal of African customary law in Kenya originate from the customs and habitual practices and traditions of the Kenyan people. For a custom to be relied upon as law, it must have certain characteristics:

  1. Reasonableness
  2. Conformity with statute law
  3. Observation as of right
  4. Immemorial antiquity

Recognition of a local custom as law

A local custom can only be recognized as law if it meets the following conditions.

  • It must be reasonable
  • It must be certain i.e. the right which is claimed must be proved to adhere to a defined group of people or community
  • Continuity- The right to exercise the customs must have been continuous and there must not have been any interruptions or breaks in its application.
  • Must have existed since time immemorial
  • Must not be inconsistent with any written law
  • Must be acceptable to the people and must not have been exercised by use of force.After independence the customary rules of Kenya were accorded full recognition as a source of law under the judicature act.

    A claim under African Customary Law involves

    • Land held under Customary Law.
    • Marriage, divorce and maintenance.
    • Seduction or pregnancy of unmarried woman or girl.
    • Enticement of or adultery with a married woman.
    • Matters affecting personal status and in particular widows and children.
    • Succession, both testate and intestate.