CHAPTER TWO

2.0 SOURCES OF LAW

Learning Objectives

By the end of this chapter the learner should be able to;

(i) Explain various sources of law in Kenya

(ii) Explain briefly how constitution if a source of law

2.1 Introduction
The sources of the Laws of Kenya are contained in section 3 of the Judicature Act (Chapter 8
Laws of Kenya) and include the constitution which is written, legislation, which includes Acts of
the Parliament of Kenya; specific Acts of the parliament of the United Kingdom and the Law of
Contract Act (Chapter 23 Laws of Kenya); subsidiary legislation, the substance of the common
law, the doctrines of equity and the statutes of general application in force in the United
Kingdom on August 12, 1897 and the procedure and practice observed in courts of Justice in the
UK at that date.
The common law, the doctrines of equity and the statutes of general application in the UK as
indicated above only apply so far as the circumstances of Kenya and its inhabitants permit. The
constitution is the supreme law and takes precedence over all other forms of law, written or
unwritten
2.2 Constitution

Any modern state or institution is expected to deal with various types of social, political and
economic problems. To carry out these functions smoothly it needs a comprehensive framework
through which it operates. These responsibilities would accordingly be integrated into the
Legislative, Executive and Judicial operations. The constitution is therefore the single formal
document, which defines the composition and powers of different organs of the state or the
institution and their relationship with each other and to private citizens.

Lord James Bryce defines the constitution as consisting of „those rules of laws which
determines the form of its government and the respective roles of its organs and the respective
rights and duties of it towards a citizen and of a citizen towards the Government‟.

A constitution may be written or unwritten. A written constitution is one which most of the
important constitutional provisions are enacted in a formal document or series of documents.

A written constitution is generally considered to be rigid i.e. can only be changed in some
manner e.g. by requiring a specified majority. Kenya‟s current constitution promulgated on the
27th of August, 2010 is a written constitution just like the previous one. It provides for a rigorous
approach to amendment at Chapter 16 to guard against arbitrary and uncalled for amendments.
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It has a total of 18 Chapters,264 Articles and 6 schedules. Article 2(4) of the constitution
establishes its unchallengeable position over any other written or unwritten law i.e. the
supremacy of the constitution. The constitution of Kenya establishes the legislature (Chapter 8),
the executive(Chapter 9), the judiciary (Chapter 10) as well as the fundamental rights and

freedoms of individuals (Chapter 4). A study of constitution entails consideration of the

following:

a. Historical circumstances in which constitution came to be adopted.

b. Political and philosophical values underlined in the constitution i.e. Liberal democracy, the
preamble etc.

c. The position of authority enjoyed b y constitution within the legal order i.e. supremacy of the
constitution.

d. Individual provisions of the constitution and their implications.

e. Amendments and interpretation for practical operations of the constitution.

Supremacy of the constitution.

In countries where there exists a written constitution, the constitution invariably enjoys a pre-
eminent position within the legal order. The constitution is regarded as the law within which the
frame- work or detailed rules and practice are to be laid out. The constitution takes precedence
and supremacy over all other laws. The theory behind supremacy of the constitution is that it
embodies a contract between the government and the governed. The constitution must therefore
not be altered in the same manner as ordinary legislation. The constitution is or is supposed to be
the product of the exercise of the constituent power inherent in the people and it is from it that all
legislative Acts derive their authority.

In the context of Kenya, the concept of the supremacy of the constitution is captured in Article 2
of the constitution. It provides that;

- The constitution is the supreme law

- The validity or legality of the constitution is not challengeable

- Any act or omission in contravention of the constitution is invalid

- It is binding upon all persons and state organs at all levels

- State authority must be exercised as authorized by the constitution

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- Every person is obligated to respect, uphold and defend the constitution

- Any attempt to establish a government without complying with the constitutions requirement in
doing so is unlawful

This provision further subject other laws to the constitution and in particular, it

provides that:-

- Any law including customary law that is inconsistent with the constitution is void to the extent
of inconsistency

- Any treaty or convention ratified by Kenya forms part of the constitution

Amendment of the Kenyan Constitution (Chapter 16, Articles 255, Article 256, Article 257)

Article 255 requires that a referendum be held in case a proposed amendment touches on the
named areas which include:

(a) the supremacy of the constitution

(b) the territory of Kenya

(c) the sovereignty of the people

(d) the Bill of Rights

(e) the term of office of the President

(f) the independence of the Judiciary

(g) the functions of Parliament

(h) the objects, principles and structure of devolved government

A proposed amendment shall be approved by a referendum if at least 25% of the registered

voters in each of at least half of the counties vote in the referendum and is also supported by a
simple majority of the citizens voting in the referendum. An amendment not relating to matters
aforementioned shall be enacted either by Parliament (Art. 256); or by the People and Parliament
(Art. 257).

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 2.3 Statutes

All other written laws refer to the legislations or statutes. Legislation in the \context of Kenya
specifically include:

- Acts of parliament.

- Certain specific Acts of U.K. Parliament.

- Statute of General application.

- One Indian Act – Transfer of Property Act.

- Delegated legislation.

2.3.1 Acts of Parliament.

During the colonial period in Kenya, three institutions exercised legislative power.

i. The British Parliament which had powers to legislate for colonies.

ii. The British Crown – It had powers to legislate for the colonies by virtue of:

iii. The local legislature.

In Kenya today the power to legislate is vested in the Kenyan Parliament which consists of the
National Assembly and the Senate established under Chapter 8 of the Constitution.

2.3.2 Judicial precedents.

Judicial precedent means decisions of judge‟s laying down legal principles for cases coming
before it. They are also referred to as case law. They are found in judicial decisions or
judgments. They provide common reference to judge made law. They are found in law reports.
Both common law and equity have developed through the doctrine of judicial precedents and
stare decisis, which means that in trying and deciding cases as a judge, he must look back to see
how the previous judges have dealt with the case involving similar facts.

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Revision Questions

1. Explain the primary sources of law in Kenya

2. Discuss how the new constitution of Kenya is different from the old constitution

Recommended Readings
(i) Legal framework in education, government printer, 2005, Kenya government.
(ii) The laws of Kenya, government printer 2004
(iii)The new constitution of Kenya, government printer , 2011
(iv) Brinkerhoff Derrick W, and Rudi Klauss, “Managerial Roles for social Development
management’ public administration and development, 1985
(v) Burke w.w. Organization development: principles and practices, Boston: Little, Brown,
1982

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