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:
- Reasonableness
- Conformity with statute law
- Observation as of right
- 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.