AFRICAN CUSTOMARY LAW
This is an unwritten source of law, based on the traditions and customs of the African
people in Kenya. It is not every part of African traditions that shall be regarded as African
customary law but only those customs and traditions which have been clearly identified
under provisions of The Judicature Act and the Magistrates court Act. It is therefore
these two statues which govern application of African customary law by the courts in
These statutes provides that the high court, court of appeal and all subordinate courts
shall be guided by African customary law in claims of the following nature;
The claim must be civil in nature- African customary law does not cover criminal disputes
because such matters are governed by the general law and in particular the penal code.
One or both parties must be subject to or affected by the custom
The custom must not be repugnant to justice or morality
The custom must have been accepted by choice and not by force.
It must not be inconsistent with the Kenyan constitution or any other written law of Kenya.
It must be of immemorial antiquity ie it must be proved to have been in existence and to
have been respected.
Technical procedures observed in ordinary cases need not be strictly adhered to (the
claim must be hard and determined without unnecessary delays arising from observants of
b. The magistrates courts act (claims themselves)
This statute recognizes claims under African Customary law and empowers the
magistrates court with original jurisdiction to handle such matters. The claims include the
Land held under customary tenure
Enticement of or adultery with a married woman
Seduction or pregnancy of an unmarried woman or girl
Marriage, divorce, maintenance and dowry
Matters affecting personal status and in particular the status of women, widows and
children, including issues of inheritance and adoption.
Inte-state succession and administration of inte-state estates in so far as they are not
governed by any written law.
The Kenya courts do strictly adhere to the statutory provisions mentioned above. This is
confirmed trough the following citations.
a. The claim must be civil in nature whereby one or both parties are subject to a or
affected by the custom and it should relate to matters of persona status such as
inheritance, adoption, the rights of women and children.
i. Edith Virginia Wambui Otieno
Joash Ougo Omollo Sitanga andothers
(the SMOtieno case)
The above cited case concerned the burial traditions of a Luo gentleman who had married
a Kikuyu lady. The claimwas determined in favour of Luo custombecause the deceased
person’s relatives proved that the customin question was well in accordance with
provision of both the magistrates court act and the judicature Act.
ii. Maria Gisese
The above cited case concerned the woman to woman marriage practiced in the traditional
Kisii community. The claimwas dismissed by court because it was based on a custom
regarded as repugnant and immoral. This customdenied the mother and child, protection
and inheritance fromthe biological father of such child.
This is the unwritten source of law which was given to man by the almighty through his
prophet Mohammed. It is based on the teaching found in the Quran/Koran, Hadith (the
sayings and practice of the prophet).
Islamic law is observed by those of the Islamic faith. Legally it is regarded a personal law
because it covers matters of personal status eg marriage, divorce, inheritance etc and is
only affects a specific group of persons ie the Muslims. In Kenya Islamlaw shall only
cover civil claims on personal status where both parties are Muslims. It is enforced
through special cours known as Kadhis courts and appeals are forwarded to the high
court when the chief kadhi shall be assisted by puisne judges of the Islamic faith.
Advantages and disadvantages of statutes law
1 . Statutes are in written form hence they take precedence over the unwritten law.
2. They are more reasonable and to some extent more democratic than the unwritten
3. They bring uniformity in the administration of law because they affect a larger
group within the state.
4. Statutes are certain because they can be read and they are easier to interpret
than the unwritten law.
5. Statues cover both the civil and criminal branches of law.
1 . The process of amending statutes is time consuming and expensive.
2. Statutes frequently favour the legislature or executive of the day
3. Statutes frequently disregard the unwritten law and this interferes with the
cultural heritage of people.
4. Formulation of statues is more costly and time consuming than that of the
THE LAW OF CONTRACT
Definition – a contract is an agreement between two or more persons which defines their
rights and obligations and is legally enforceable.
– Every agreement enforceable by law shall be a contract.
Therefore basing on the two definitions above. It is clear that every contract must be an
agreement expressed or implied but not every agreement shall result into a contract
unless it possesses the following prerequisite elements.
A. Lawful offer must exist in every contract and it must be made by a person referred
to as the offeror to another who shall be the offeree. An offer can be expressed
or implied. It is an expression of willingness to contract on definite terms with the
offeree, once such terms are accepted.
B. Lawful acceptance – an acceptance must exist in every contract and it must be
clear and certain not vague or ambiguous. Acceptance is the manifestation of the
offerees intention to contract with the offeror on definite terms. Once an offer
has received an acceptance a legal promise is created and the basis contractual
equation established. Anything done contrary to this equation shall automatically
amount to breach of contract.
C. Lawful consideration – consideration must always exist in the contract because
the law of contract shall not support bare or naked promises. Consideration is
o The price for which the promise of the other is brought
o Something in return
o One thing for another ie ‘Quid Pro Quo’
. D. Free consent – parties to the contract must have willfully agreed to bind themselves
to their specific promise basing on their individual best judgement. Free consent should
not possess a vitiating factor such as mistake, misrepresentation undue influence
coercion (duress), illegality etc.
Consensus –ad-idem- it means unity of minds parties to the contract must clearly
understand each others aims and objectives. This element eventually results into privity of
contract (contractual relationship). However it is only that which has been said or done
by the party that shall constitute this element and not a persons inner thoughts.
Capacity to contract- parties to the contract must possess the required legal contractual
capacity and none of them should be affected by a legal disability eg minority, insanity,
bankruptcy etc. however there are exceptional cases where persons with legal disability
shall nevertheless enter valid contracts.
Possibility of performance – the law of contract is based on practical matters and it shall
never support fantastic impossibilities. Parties must therefore only promise to do that
which they know they possibly can. The probability may be low but the contract will still
be enforceable if possibility exists. It is common in business that where the probability
for performance is low a person may easily bargain to pay a higher premium.
Lawful purpose – the purpose for which the parties intend to enter the contract must
neither be unlawful nor repugnant otherwise the agreement shall be deemed void ‘abinitio’.
This is due to the fact that the law of contract does not support illegality.
Intention to create legal relationship- parties to the contract must have intended to create
a binding legal relationship between themselves. For this reason social and domestic
arrangements eg a promise to attend a birthday cannot possibly result to a contract
unless a party clearly proves that all the prerequisite elements of contract exist. In legal
understanding the agreement must therefore be one regarded as ‘a covenant of salt’ ie an
unbreakable and unimpeachable promise.
Formalities of the agreement – these will greatly depend on the nature of the transaction.
Some contracts require elaborate procedures to be respected eg payment of stamp duty.
Presence of witnesses etc while others are quite casual and informal eg the purchase of
newspapers on the streets. While a person falls to respect the laid down procedures he
reduces his ability to eventually enforce his contractual rights.
Classification of contracts
Contracts shall be classified into various categories depending on their formation,
enforcement and legal consequences.
Express and implied contracts
a. Express contract
An express contract is either in writing or by parol (oral). Generally the parties
specifically agree on the nature of their transaction and the terms of contract. It then
becomes reasonably clear to each party what the other intends to do.
b. Implied contracts
These are silent in nature. No specific agreement or pronouncement shall be made by the
parties and the contractual relationships existing between themshall be determined by
their behavior and surrounding circumstances. In majority of the cases implied contracts
are a blend of both the express and implied whereby one of the parties may at some point
make a brief pronouncement eg boarding a matatu or purchasing general groceries in the
2. Unilateral and bilateral contracts
Only one party binds himself to the terms of contract even though the parties are
more than one eg where a person offers a reward for recovery of lost property he
binds himself to the offer and must reward whoever and deliberately performs the task.
Most contracts are bilateral because they comprise an offer made by the offeror and
an acceptance by the offeree. Contracts may also be tripartite in form ie
compromising of three distinct parties eg a contract of guarantee.
3. Valid, void and voidable contracts
a) Valid contracts – they have all the perquisite elements of contracts and they are
therefore enforceable by law.
b) Void contracts – they are simply the opposite of valid contracts.
They are not binding on the parties hence not enforceable at law. The reason may
be lack of consideration or presence of vitiating factor other than undue influence.
These shall practically and legally hang in between the valid and the void. The
aggrieved party shall therefore retain the right to exercise the doctrine of election
whereby he may elect to affirm the contract and make it valid or reject it and make
it void. Voidable contracts are therefore enforceable at the option of the
aggrieved acts reasonably fast to withdraw from the contract otherwise his delay
shall make it binding.
Contract may be voidable because one of the parties is a minor/insane person or
there was undue influence.
4. Illegal and unenforceable contracts
a) Illegal contracts
There objective is against the law hence they become illegal and void ‘ab-initio’
because the law of contract shall not support illegality.
b) Unenforceable contracts
This would have been valid if certain requirements of the law were fulfilled in good
time. A contract becomes unenforceable due to failure of condition or inordinate
delay ie (lapse of time.
5. Contracts uberrimae fide-uberima fides
This are simply contracts for utmost-good faith ie where the highest degree of
honestly is required at all times.
In such transactions one of the parties has valuable knowledge and he is duty
bound under the common law, duty of maximum disclosure to disclose all such
information. Partial disclosure or none disclosure may amount to fraud and the
contract shall be cancelled while the wrong doer is punished for deceit.
Examples of such contracts
6. Contracts of record
These are based on pronouncements made in a court of law and shall be either one
of the following;
a) Court judgements – these are judgments and orders in civil claims. The
judgement debtor shall be ordered to undertake a specified task and these
orders will be recorded. Failure to respect the orders will amount to breach and
contempt of court whereby the judgement debtor shall be punished accordingly.
b) Recognisances – these are judgements and rulings in criminal matters and they
will have specific conditions which must be fulfilled otherwise the convict or
accused shall be liable for contempt of court. The orders and rulings include
probation, conditional discharge, suspended sentence, bail etc.
7. Executed and executor contracts
Both parties have fulfilled their respective promises and no one owes the other
anything. The contract is therefore discharged by performance.
Either one or both parties are yet to fulfil their respective promises. The contract
remains executor until each party fulfills his specific promise because execution
of a contract must be dual.
8. Quasi contracts
These are half-contracts because they are transactions similar to contract and
based on equity. They are governed by the principle which states ‘no man should
grow rich out of anothers imsfortune’ their objective is to prevent unfair benefit
or gain by persons who does not deserve it.
Quasi contracts rarely originates from an agreement and this is a major
disadvantage because it becomes difficult to prove their existence.
A finder of lost property has a legal obligation to take good care of the property and to
use reasonable means in tracing the lawful owner. The finder must thereafter surrender
the property to the lawful owner who should in turn compensate the finder for any
expenses incurred in protecting of preserving the property.
On this basis then the ancient common law principle ‘finders keepers’ shall no longer
legally apply because where a person comes across property which is unattended and
does not have a legal owner in existence such property legally reverts to the state by
Where necessaries have been supplied to a person with legal disability such as a minor or
insane person the parent, guardian or minder of such person shall be bound to pay a
reasonable price for the supplier.
Under partial performance (ie performance in part) where work is incomplete or poorly
performed the worked must nevertheless be compensated on quatummeruit basis.
9. Simple and specialty contracts
a) Simple contracts
These fall under the exact definition of a valid contract and will either be written or by
parol the main characteristics of simply contracts is that they must be supported by
valuable consideration. Majority of simple contracts shall be by parol and witnesses
are unlikely to exist.
b) Specialty contracts
These may also be referred to as contracts under seal. They are written, signed, sealed
and delivered by the party promising to the party being promised. Consideration may be
prompt or deferred and at times it may not even exist. Actual physical delivery of the
subject matter is not mandatory hence delivery will either be actual and physical or
simply constructive in form. Constructive delivery arises where title documents of the
property in question are drawn in the name and favour of the new owner and such
documents are thereafter handed over to him. A certified record o this transaction is
also maintained at the relevant government registry eg land registry, motor vehicles
registrys companies registry etc.
Specialty contracts also known as contracts under seal fall into three categories;
1 ) Contracts which must be under seal (government authentication and title transfer)
a) Gratuitors promises
These are promises and gifts out of natural love and affection.
b) Transfer of british ships or shares
c) Conditional bills of sale
II contracts which must be in writing (proper written agreement between the parties)
a. All contracts which require payment of stamp duty eg bills of exchange and
b. Transfer of shares in public limited companies
c. Acknowledgment of statutes barred debt/time barred debt.
d. Transfer of immovables ie land and housing
e. Proof of credit worthiness
III. Contracts which must be evidenced in writing (any evidence eg receipt vouchers
a. Contract of guarantee
b. Sale of land
c. Sale of goods whose value is Ksh 200 and above
d. Hire purchase
e. Money lending contracts
Contents of the memorandum required as evidence of contract
In relation to the law of contract a memorandum is a document drawn by parties clearly
showing their contractual relationships and specific terms of such contracts. A
memorandum should clearly show the following.
1 . Names of the parties to the agreement sufficiently described eg including ID nos,
postal address and their specific contractual position.
2. Subject matter of sale sufficiently described including the model serial number and
the place where it is currently located.
3. Consideration payable and the mode for payment ie whether prompt or deferred in
cash or by cheque or whether it is simply a gift
4. Date and place where the contract was made and date when transfer for the
subject matter is to be effected.
5. Names and signatures of the parties to be bound to the transaction or names and
signatures of the persons transacting or their legal representatives that appear in
6. Names of witness to the transactions and their signatures if such witnesses were