LECTURE TWO

THE SOURCES OF KENYA LAW I

2.1 Introduction
Law may be classified by reference to its source, i.e the means by which the law is brought into
existence.

The expresion 'source of law' can mean several different things.

 It can refer to the origins from which the law has come, such as common law and
equity.
 It can also refer to the body of rules whcih a judge will draw from in deciding cases
and where these rules are to be found.
 It also refers to the various factors which contribute and determine the content of law
and the organs through which laws are created; constituional law.

According to Salmond: ' A formal source of law is the principle from which a rule of law derives
its force and validity, that is, the will of the state as manifested in statutes or decisions of the
court. It means that the existence of a particular principal of law can only be justified when it
has a base or origin.

2.2 Sources of Kenya Law

The sources of the law of Kenya are contained in Section 3 (1) of the Judicature "Act (Cap. 8)
and are as follows:-

1. The Constitution of Kenya (contained in the Constitution of Kenya Act, (No. 5 of

1969).
2. Legislation which includes
 Acts of the parliament of Kenya
 Specific Acts of Parliament of the United Kingdom cited in Part I of the
Judicature Act, modified in accordance with Part II of that schedule. One Act of
the Parliament in India.
 English Statutes of general application in force in England on the 12th August,
1897.

Common Law & Equity

3. The substance of the common law, the doctrine of equity and the statutes of
general application in England on the 12th August, 1897. It should be borne in
mind that the common law, the doctrine of equity only apply 'so far only on the
circumstances of Kenya and its inhabitants permit and subject to such
qualifications as those circumstances may render necessary'.

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 4. Judicial precedent (case law)

5. Subsidiary (Delegated) legislation.

6. African Customary Law. Section 3(2) provides that the High court and all
subordinate courts will apply customary law in civil cases in which one or more
of the parties subject to it or affected by it is African, so far as it is applicable and
is not repugnant to justice and morality or inconsistent with any written law.

7. Islamic laws

8. Hindu custom

The Legal pyramid

Written
Law

Un
Written
Law

2.3 The Constitution of Kenya

The constitution of Kenya is a written constitution originally enacted on the 12th December,
1963, although it has been subject to amendments which are now embodied in the Constitution
of Kenya act 1969. Constitutional law falls within the domain of public law. A constitution is a
public document, which regulates the relations between the state and its citizens, as well as the
relations between the organs of the state.

According to Lord Bryce, the constitution 'consists of those rules or laws which determine the
form of its government and the respective rights and duties of its government and the respective

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rights and duties of it towards a citizen and of the citizen towards a citizen and of the citizen
towards the government.

Professor Wade has defined a constitution as 'a document having a Special Legal Sanctity' which
establishes the major organs of the government of a country and outlines their powers. The
Kenya constitution establishes the major organs of the government of Kenya as well as their
powers.

2.4 The President

Section 4 of the Constitution states:
'There shall be a President of Kenya, who shall be the Head of State and Commander in-Chief
of the armed forces of the Republic'.

Is the President above the law?

Section 14 (1) of the Constitution states that 'no criminal proceedings whatsoever shall be
instituted or continued against the President while he holds office, or against any person while he
is exercising the functions of the office of the President'.

Section 14(2) states that 'no civil proceedings in which relief is claimed in respect of anything
done or omitted to be done shall be instituted or continued against the President while he holds
office or against any person while he is exercising the functions of the office of President?

In order to appreciate the full scope of these provisions we must refer to S 14(3) which provides:
‘Where provision is made by law limiting the time within which proceedings of any description
may be brought against any person, a period of time within which a person holds or exercises
the functions of the office of President shall not be taken into account in calculating any period
of time prescribed by that law which determines whether any such proceedings as mentioned in
sub-section (1) or (2) may be brought against that person’.

Ogolla (1999) has explained the effect of this provision using the following illustration:

Suppose that Mr. Onyango is your neighbour and also happens to be the president. He comes to
you one afternoon and tells you that he is expecting some visitors and asks you to sell a
particular bull to him, and promises to pay it at the end of the month. You then accept his offer
and sell to him the bull, but at the end of the month, of he fails or refuses to pay the agreed price.
This refusal would constitute a breach of contract in respect of which, under the limitations of
Actions Act of 1968, proceedings for recovery of the price must be instituted within six years
beginning from the day that the payment was to be made. However, since Mr. Onyango is
currently holding the office of the President, the effect of S.14 of the Constitution would be to
stop you from going to Court immediately. You have to wait until Mr. Onyango is no longer the
president then you must sue him within six years from the date her ceases to be the President.

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Regarding Criminal Proceedings, the President is subject to our penal code like any other
Kenyan. He must not be corrupt, steal, murder, assault anybody e.t.c. if he does any of these
things, or commits any other offence, he is liable for prosecution as any other Kenyan who
committed any of the offences would have been liable. However, the combined effect of S.14
(1) and S.14 (3) is to postpone the institution of the proceedings until the day he ceases to hold
the office of the President.
2.5 Fundamental principles and concepts
The provisions of the Kenya Constitution are permeated by the following fundamentals
principles.

The Rule of Law

The ‘rule of law’ is the constitutional is the constitutional principle on which the Kenya
Constitution is founded. Although legal opinions differ as to the precise meaning of the phrase
there is general consensus that it implies a system of government that is founded on generally
accepted legal rules.

Such a system of government would ensure that the government is what it should be, and that it
is not given too much power, which would enable Government Officers to act arbitrarily.

According to the report of the case which appeared in the Daily Nation newspaper of Tuesday,
18 June, 1996, the plaintiff a Member of Parliament, was locked up at the Kiambu Police Station
on Madakara Day, 1993 after armed policemen under instructions from the two defendants went
to his house at 4.00 p.m. and arrested him. The plaintiff was not told why he was detained inside
a police car for three hours before being taken to Githunguri Police Station where he was
remanded until 3.00 p.m. the following day. He was then taken back to the Kiambu Police
Station and released without any charges being preferred against him. The plaintiff was held
incommunicado during the time he was under arrest. The defendants at the material time were
the District Commissioner and the District Criminal Investigation Officer, respectively, Kiambu
District.

According to the Nation report, the judge explained that the Attorney-General was not sued by
the plaintiff because of the plaintiff’s view that ‘tax payers’ money should not be used by
individuals who commit mistakes and put the blame on the government.

The judge directed the plaintiff be paid Kshs. 200,000 for wrongful arrest, Kshs. 200,000 as
damages and wrongful confinement and Kshs. 120,000 as exemplary damages. The defendants
were also ordered to pay the costs of the suit, which they had failed to defend. The suit was filed
on May 12, 1994 and judgement was given on June 17,1996.

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It is hoped that his decision will vindicate the principle of the rule of law and its application in
Kenya. It will also restrain government officers, who, in their over-zealous and misguided
attempts to please the senior officers, violate the laws that they are supposed to uphold. It is also
hoped that other Kenyans, particularly opposition members of Parliament, will use this case as a
precedent and sue Government officers who might henceforth harass them as they have hitherto
been accustomed to do.

2.6 Legislation in Kenya

Legislation is also a very important source of law. It is second only to the Constitution.
Legislation refers to law, which is made by a body specially constituted for that purpose.
Legislation may be direct or indirect.

Direct legislation is where the law making body is parliament. This is because parliament
derives its law-making powers directly from the constitution. A law made by parliament is
called a 'statute'. It is also known as an 'Act of Parliament'. Indirect legislation is where an
individual or a body other than parliament makes laws on the basis of powers derived from a
statute i.e. by-laws made by local authorities.

Define a bill and describe the process through which a bill goes before it becomes law.

In Kenya, Parliament is the supreme law-making body of the country. Section 46 of the Kenya
Constitution states that the legislative powers of parliament is exercisable by Bills passed by the
National Assembly. A Bill is a draft of a proposed Act of Parliament.

Classification of Bills
Bills may fall in three (3) categories
Public bills deal with matters of public policy and their provisions affect the general public.
Private Bills are those which are intended to affect or benefit some particular person, application
or corporate body.
Private members' bill is introduced by a private member of parliament. The member is
responsible from drafting his own bill.

Most bills are Government bills in the sense that they are sponsored by a particular minister and
priority is always given to Government business. Almost all Government Bills are public bills
i.e. the effect the community as a whole.

Legislative Process of a bill before it becomes law

1) Government bills are drafted by a legislative draftsman in the Attorney General's
Chambers. The Bill will be approved by the cabinet before it starts its parliamentary life.
The bill must first be published in the 'official Gazette'. After a lapse of at least fourteen
days it can then be considered by the National Assembly.
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 2) The first stage is the First Reading, which is merely a formal reading of the title of the
Bill, it gives the members notice of the Bill.
3) It is then moved that the Bill be read a first time. A Date is then fixed for the second
Reading. If the bill is approved at this stage then it is printed and circulated among the
members of parliament to enable them prepare for the debate on the bill.
4) The minister or member incharge of the bill explains the main features of the bill. Every
member is allowed to participate in the debate but can speak only once. The members
now have to decide whether they approve the Bill in principle, or not. It is then moved
that the Bill be read a second time.
5) If the motion is passed, the Bill can then be referred to a select committee of the National
Assembly for what is known as the committee stage. Alternatively the Bill can be
considered by a committee of the whole national Assembly.

6) At this stage the Bill is considered in detail, clause by clause, and the Minister
responsible for promoting the bill will spend some considerable time with the standing
committee.
7) After the committee stage is complete, the Bill is then reported back to the house
(Reporting stage). The house has another valuable opportunity to debate the amendments
proposed by the committee.
8) In practice, the bill is largely finalized at this stage and the House will fix a date for the
third reading. At the third reading only minor changes can be made to the Bill and the
Assembly is asked to approve the Bill in its final form.
9) A motion that the Bill be read a third time is then moved and if carried the Bill can now
be presented to the President for his assent. No bill can become law without the
President's assent.
10) When the assent is received the bill becomes an Act of parliament. The date of
commencement of the Act is either the date it received the presidential assent, (or a date
shortly afterwards) or it can be brought into operation by order made by appropriate
minister.
For example, the Hire Purchase Act, (Cap. 507) received the Presidential assent on 26th June,
1968, but was not brought into operation until 2nd November 1970.
In summary, a bill passes through the following stages to become law:-
 First reading
 Second Reading
 Third Reading
 Committee Stage
 Third Reading
 President's Assent