SOURCES OF LAW
The phrase source of law literally means where rules of law are found. However,
the phrase has been used in a variety of senses. It has been used to describe;
i. The origins of the rules and principles which constitute the law applicable
in a country at a given time.
ii. The source of force or validity of the various rules or principles applicable
as law in a country.
iii. The materials from which rules of law developed.
iv. The factors which influence the development of the rules of law.
Hence the phrase sources of law have been used to describe the legal, formal,
historical and material sources of law.
Sources identified by the Judicature Act.
1. The Constitution
2. Legislation (Act of Parliament) (Statutes)
3. Delegated legislation
4. Statutes of General Application
5. Common law
6. Equity
7. Case law or (judge – made law)
8. Africa Customary law
1. ALL OTHER WRITTEN LAWS (STATUTE LAW / LEGISLATION / ACTS
OF PARLIAMENT)
This is law made by parliament directly in exercise of the legislative power
conferred upon it by the Constitution. The product of parliament’s legislative
process is an Act of Parliament e.g. The Mining Act1.
Sec 3(1) (b) of the Judicature Act recognizes legislation or statues law as a source
of law of Kenya by the words “All other written laws”. These words encompass:
1 Cap 306 Laws of Kenya.
1
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, 1. Certain Acts of the UK Parliament applicable in Kenya.
2. Certain Acts of the Indian Parliament applicable in Kenya
3. Acts of the legislative council
4. Acts of the Parliament of Kenya.
Statute law legislation is a principal source of law applicable throughout Kenya. It
must be consistent with the Constitution. It is the most important source of law.
3. STATUTES OF GENERAL APPLICATION
Kenyan Law does not define the phrase “Statutes of General Application”.
However, the phrase is used to describe certain Statutes enacted by the UK
parliament to regulate the inhabitants of UK generally.
These Statutes are recognized as a source of Law of Kenya by Section 3 (1) (c) of
the Judicature Act. However, there application is restricted in that they can only
be relied upon:
i. In the absence of an Act of parliament of Kenya.
ii. If consistent with the provisions of the Constitution.
iii. If the Statute was applicable in England on or before the 12/8/1897
iv. If the circumstances of Kenya and its inhabitants permit.
Examples include:
1. Infants Relief Act, 1874
2. Married Women Property Act 1882
3. Factors Act, 1889
Statutes of general application that have been repealed in the UK are still
applicable in Kenya unless repealed by the Kenyan parliament.
DELEGATED LEGISLATION
Although the Constitution rests the legislative power of the republic in
parliament, parliament delegates its legislative power to other persons and
bodies.
Delegated legislation is also referred to as subsidiary (subordinate legislation.)
It is Law made by parliament indirectly.
2
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The phrase source of law literally means where rules of law are found. However,
the phrase has been used in a variety of senses. It has been used to describe;
i. The origins of the rules and principles which constitute the law applicable
in a country at a given time.
ii. The source of force or validity of the various rules or principles applicable
as law in a country.
iii. The materials from which rules of law developed.
iv. The factors which influence the development of the rules of law.
Hence the phrase sources of law have been used to describe the legal, formal,
historical and material sources of law.
Sources identified by the Judicature Act.
1. The Constitution
2. Legislation (Act of Parliament) (Statutes)
3. Delegated legislation
4. Statutes of General Application
5. Common law
6. Equity
7. Case law or (judge – made law)
8. Africa Customary law
1. ALL OTHER WRITTEN LAWS (STATUTE LAW / LEGISLATION / ACTS
OF PARLIAMENT)
This is law made by parliament directly in exercise of the legislative power
conferred upon it by the Constitution. The product of parliament’s legislative
process is an Act of Parliament e.g. The Mining Act1.
Sec 3(1) (b) of the Judicature Act recognizes legislation or statues law as a source
of law of Kenya by the words “All other written laws”. These words encompass:
1 Cap 306 Laws of Kenya.
1
This study source was downloaded by 100000858663287 from CourseHero.com on 12-05-2022 14:57:56 GMT -06:00
https://www.coursehero.com/file/57822223/SOURCES-OF-LAWdocx/
, 1. Certain Acts of the UK Parliament applicable in Kenya.
2. Certain Acts of the Indian Parliament applicable in Kenya
3. Acts of the legislative council
4. Acts of the Parliament of Kenya.
Statute law legislation is a principal source of law applicable throughout Kenya. It
must be consistent with the Constitution. It is the most important source of law.
3. STATUTES OF GENERAL APPLICATION
Kenyan Law does not define the phrase “Statutes of General Application”.
However, the phrase is used to describe certain Statutes enacted by the UK
parliament to regulate the inhabitants of UK generally.
These Statutes are recognized as a source of Law of Kenya by Section 3 (1) (c) of
the Judicature Act. However, there application is restricted in that they can only
be relied upon:
i. In the absence of an Act of parliament of Kenya.
ii. If consistent with the provisions of the Constitution.
iii. If the Statute was applicable in England on or before the 12/8/1897
iv. If the circumstances of Kenya and its inhabitants permit.
Examples include:
1. Infants Relief Act, 1874
2. Married Women Property Act 1882
3. Factors Act, 1889
Statutes of general application that have been repealed in the UK are still
applicable in Kenya unless repealed by the Kenyan parliament.
DELEGATED LEGISLATION
Although the Constitution rests the legislative power of the republic in
parliament, parliament delegates its legislative power to other persons and
bodies.
Delegated legislation is also referred to as subsidiary (subordinate legislation.)
It is Law made by parliament indirectly.
2
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