What are customary laws in Kenya?

What are customary laws in Kenya?

convicted of a criminal offence unless that offence was defined, and the penalty for it prescribed, in a written law. 27 As customary law is unwritten law, this means that criminal offences found in customary law cannot apply in the Kenyan legal system. Customary criminal offences are therefore not part of Kenyan law.

What is the meaning of African customary law?

Officially, in terms of the Recognition of Customary Marriages Act, “‘customary law’ means the customs and usages traditionally observed among the indigenous African peoples of South Africa and form part of the culture of those peoples.” There is no clear distinction, then, between the religion, the culture and the law …

How does customary law operate?

Customary law systems are based on patterns of behavior (or customs) that have come to be accepted as legal requirements or rules of conduct within a particular country. The laws of customary legal systems are usually unwritten and are often dispensed by elders, passed down through generations.

What is meant by customary law?

Customary law is a set of customs, practices and beliefs that are accepted as obligatory rules of conduct by indigenous peoples and local com- munities. Customary law forms an intrinsic part of their social and economic systems and way of life.

How do you prove customary law?

The proof of customary law in court is governed by the copious provision of Section 16 of the Evidence Act 2011. The summary of the Act therefore is a customary law can either be proved by direct evidence to establish its existence or by established judicial notice.

Is African customary law a source of law in Kenya?

For a long time, the jurisprudence emanating from Kenyan courts has treated African customary law as an inferior source of law in comparison to formal laws. However, the 2010 Constitution recognizes customary law and the use of traditional dispute resolution mechanisms in resolving disputes.

What is an example of customary law?

Hunting and fishing rights; Aboriginal traditional marriages; Aboriginal child care practices; Traditional distribution on death; and.

What is an example of a customary law?

What are the requirements of customary law?

Requirements for a valid customary marriage

• The prospective spouses must both be above the age of 18 years;
• They must both consent to be married to each other under customary law; and.
• The marriage must be negotiated and entered into or celebrated in accordance with customary law.

What are features of customary law?

SALIENT CHARACTERISTICS OF CUSTOMARY LAWS Customary law has several features which include inter alia: 1 It is largely unwritten 2 It is accepted as binding in the society. 3 It differs from tribe to tribe i.e. it is not uniform 4 It must be in existence at the material time.

Is “African customary law” qualified to be a legal system?

No wonder many modern African law practitioners who trained under the received Common Law System do think that “African customary law” is not qualified enough to be considered as a legal system.

What is the law of inheritance in Kenya?

Under customary law in Kenya, succession of property is patrilineal, that is through the male line.89 The main features of customary law of inheritance include communal holding of land and property, supremacy of males (particularly the eldest son), and general exclusion of women from inheriting, particularly land.

Which courts have jurisdiction in customary law in Kenya?

However, the various courts in Kenya have varying levels of jurisdiction in customary law. Under the Constitution, the High Court has original unlimited jurisdiction in all civil and criminal matters. Though not specifically stated, this jurisdiction includes customary law jurisdiction.

Is there any research on African traditional law?

It is a pity that too little has been documented on African traditional laws since the publication by the late Justice T.O. Elias back in 1956 as we shall see later in this text. The study of law as a scientific discipline is a recent endeavour as compared to other branches of social sciences.