Unwritten sources of law apply subject to the written sources. Written sources prevail over unwritten sources in the event of any conflicts.
This is primarily because unwritten law is generally made by a supreme law-making body.
These sources include:
1. Common law
2. Equity
3. Case law
4. Islamic law
5. Hindu law
6. African Customary law.
COMMON LAW
It may be described as a branch of the law of England which was developed by the ancient common Law Courts from customs, usages and practice of the English people.
These courts relied on customs to decide cases before them thereby giving such customs the force of law. The court of Kings Bench, Court Exchequer and the court of common pleas are credited for having developed common law.
These courts standardized and universalized customs and applied them in dispute resolution. At first, common law was a complete system of rules both criminal and civil.
The development of the common law is traceable to the Norman Conquest of the Iberian Peninsula. The Romans are credited for having laid the foundation for the development of the common law.
CHARACTERISTICS OF COMMON LAW
1. Writ System.
2. Doctrine of stare decisis
1. THE WRIT SYSTEM
At common law, actions or cases were commenced by a writ. There were separate writs for separate complaints. Writs were obtained at the Royal office.
A Writ stated the nature of the compliant and commanded the police officer of the country in which the defendant resided to ensure that the he appeared in court on the mentioned date.
Often, police officers demanded bribes to compel the defendant to appear in court and would not compel an influential defendant.
The writ system did not recognize all possible complains and many would be plaintiffs could not access the courts.
It also lengthened the judicial process.
2. DOCTRINE OF STARE DECISIS
Stare Decisis literally means “decision stands” or “stand by the decision.” This is a system of administration of justice whereby previous decisions are applied in subsequent similar cases.
At common Law, a judge having once decided a case in a particular manner had to decide all subsequent similar cases similarly.
This made the common Law system rigid. Common Law consists of decisions handed down by courts of law on the basis of customs and usages and may be described as the English Customary Law.
PROBLEMS/SHORTCOMINGS OF COMMON LAW
1. Writ System: Cases at common Law were commenced by a writ issued by the Royal office.
There were separate writs for different complaints. However:
a. This system did not recognize all possible complaints and many would be plaintiffs had no access to the courts
b. The writ system encouraged corruption
c. It lengthened the course of justice
2. Rigidity/inflexibility: The common Law courts applied the doctrine of Stare Decisis. This practice rendered the legal system rigid and hence unresponsive to changes.
3. Procedural technicalities: The Common Law procedure of administration of justice was highly technical. Common Law courts paid undue attention to minor points of procedure and many cases were often lost on procedural matters.
4. Delays: The administration of justice at common Law was characterized by delays.
Defendants often relied on standard defenses to delay the course of justice. These defenses were referred to as essoins and included; Being out by floods, being unwell or being away on a crusade. If sickness was pleaded, the case could be adjourned for 1 year and 1 day.
5. Non-recognition of trusts: Common Law did not recognize the trust relationship.
This is an equitable relationship whereby a party referred to as a trustee, expressly, impliedly or constructively holds property on behalf of another known as beneficiary. At common Law beneficiaries had no remedies against errant trustees and trustees had no enforceable rights against beneficiaries.
6. Inadequate remedies: Common Law courts had only one remedy to offer namelymonetary compensation or damages. They could not compel performance or restrain the same.
7. Inadequate protection of borrowers: At common Law, a borrower who failed tohonour his contractual obligations within the contractual period of repayment would lose not only his security but the total amount paid.
2.5 EQUITY
It may be described as that branch of the law of England which was developed by the various Lord Chancellor‟s courts to supplement the common Law.
It was developed to mitigate the harshness of the common Law.
The development of equity is traceable to the early petitions to the king by persons dissatisfied with the common Law.
At first, the king heard the petitions and decided the dispute between the parties on the basis of what he thought was fair.
He was overwhelmed by the petitions whereupon he established the office of the Lord Chancellor who would now hear the petitions.
More offices of the Lord Chancellor were established due to the number of petitions.
The Lord Chancellor decided all petitions on the basis of the principle of fairness. Administration of justice was fast and the writ system was not applicable.
However, the decisions handed down by the Lord Chancellor were not legally binding as the Lord Chancellor was not legally trained.
It was not until the beginning of the 16th century that the Lord Chancellors offices were held by legally trained persons and the decisions they made had the force of Law.
These decisions are what are referred to as the Doctrines of Equity.
The Lord Chancellors offices had now become courts. The administration of justice by Equity courts was flexible and not tied to the doctrine of stare desicis.
The courts had move remedies to offer and had no technicalities of procedure. The Lord Chancellor Courts were guided by the principle of fairness.
There were no other guiding principles and as a consequence many inconsistent decisions were made hence “Equity varied with the length of the foot of the chancellor”.
To enhance consistency in decision-making, the Lord Chancellors courts:
a) Developed a set of guiding principles. These were the so-called Maxims of Equity.
b) Adopted the doctrine of stare decisis.
Equity consists of rules developed by the Lord Chancellor Courts based on the principle of fairness.
CONTRIBUTION OF EQUITY
Equity developed to supplement, not to supplant the common Law. It developed as a modification to the common Law; hence it is described as “a glosson the common Law”.
Equity has an ordinary, legal and technical meaning.
In the ordinary sense, equity means fairness, justice, morality, fair play, equality etc. We are talking about doing good, doing what is morally right.
In a legal sense, equity is the branch of the law which, before the Judicature Act of 1873 came into force, was applied and administered by the Court of Chancery. A litigant asserting some equitable right or remedy must show that his claim has “an ancestry founded in history and in the practice and precedents of the court administering equity jurisdiction”.
In the technical sense equity refers to a body of rules and some authors have defined equity as that which is not the common law. They distinguish equity from the common law. It is regarded as a body of rules that is an appendage to the general rules of law.
The contribution of Equity may be classified as exclusive, concurrent and ancillary.
Equity developed the so-called “Maxims of equity”. These maxims of equity are statements which embody rules of equity. They are only guidelines. They are not applied strictly in every case. But they help us to understand what the rules of equity are. No logical sequence and they often overlap. You can have two maxims that actually say the same thing. You can have one maxim of equity which is the exact opposite of another maxim.
The Maxims of Equity include:
1. He who seeks equity must do equity
2. He who comes to equity must come with clean hands
3. Equity is equality (Equality is equity)
4. Equity looks to the intent or substance rather than the form
5. Equity regards as done that which ought to be done
6. Equity imputes an intent to fulfil an obligation
7. Equity acts in personam
8. Equity will not assist a volunteer (Equity favours a purchaser for value without notice)
9. Equity will not suffer a wrong to be without a remedy (Where there is a wrong there is a remedy for it) Ibi jus ibi remedium
10. Equity does not act in vain
11. Delay defeats equity
12. Equity aids the vigilant and not the indolent (Vigilantibus non dorminentibus jurasubveniunt)
1. HE WHO SEEKS EQUITY MUST DO EQUITY
This maxim means that a person who is seeking the aid of a court of equity must be prepared to follow the court‟s directions, to abide by whatever conditions that the court gives for the relief. And this is most commonly applied in injunctions. The court will normally impose certain conditions for granting the injunction.
2. HE WHO COMES TO EQUITY MUST COME WITH CLEAN HANDS
This scenario was summed up in the case of Jones v. Lenthal (1669) as “He who has committed inequity shall not have equity”. There is a limit to this rule.
In some cases the court has the discretion whether to apply this maxim. Limit to the extent that maxim can be applied
The limit is this: It is not all unclean hands that will deny a plaintiff his remedy. The conduct must be relevant to the relief being sought.
In Loughran v. Loughran (1934), Justice Brandeis said equity does not demand that its suitors shall have lead blameless lives. We are not concerned with issues of morality. If the breach is a trifle, a small matter, a minor breach, then that in itself should not deny the plaintiff the remedy.
The first maxim deals with now/future, the second deals with conduct in the past.
3. EQUITY IS EQUALITY (EQUALITY IS EQUITY)
In general, the maxim will be applied whenever property is to be distributed between rival claimants and there is no other basis for division.
For example, husband and wife who operate a joint bank account; each spouse may deposit or take out money. Upon divorce, the maxim applies. They share 50-50. The authority is that equity does not want to concern itself with the activities of a husband and wife – to go into the bedroom and make deep inquiries, hence equal division.
Another example relates to trusts. How do you divide the property? Say there are three beneficiaries. Then one of the beneficiaries passes away, i.e. one of the shares fails to vest. What should accrue to the surviving beneficiaries? Redistribute equally, applying the rule “Equity is equality”.
4. EQUITY LOOKS TO THE SUBSTANCE OR INTENT RATHER THAN THE FORM
This maxim makes a distinction between matters of substance and matters of form. Equity will give priority to substance (intention) as opposed to form, if there is a contradiction. This maxim is normally applied to trusts. There have been cases where the court has inferred a trust even where the word trust does not appear.
Another illustration is the remedy of rectification of contract, where equity looks to the intention, where intention matters.
This maxim lies at the root of the equitable doctrines governing mortgages, penalties and forfeitures. Equity regards the spirit and not the letter.
Courts of Equity make a distinction in all cases between that which is a matter of substance and that which is a matter of form; and if it finds that by insisting on the form, the substance will be defeated, it holds it to be inequitable to allow a person to insist on such form, and thereby defeat substance.
Thus if a party to a contract for the sale of land fails to complete on the day fixed for completion, at law he is in breach of his contract and will be liable for damages e.g. for delay. Yet in equity it will usually suffice if he is ready to complete within a reasonable period thereafter, and thus the other party will not be able to avoid performance.
5. EQUITY REGARDS AS DONE THAT WHICH OUGHT TO BE DONE
This maxim has its most frequent application in the case of contracts. Equity treats a contract to do a thing as if the thing were already done, though only in favour of persons entitled to enforce the contract specifically and not in favour of volunteers.
Agreements for value are thus often treated as if they had been performed at the time when they ought to have been performed. For example a person who enters into possession of land under a specifically enforceable agreement for a lease is regarded in any court which has jurisdiction to enforce the agreement as if the lease had actually been granted to him.
In Walsh v. Lonsdale, the agreement for lease was as good as the agreement itself where a seven-year lease had been granted though no grant had been executed. An equitable lease is as good as a legal lease. Equity looked on the lease as legal the time it was informally created.
In Souza Figuerido v. Moorings Hotel it was held that an unregistered lease cannot create any interest, right or confer any estate which is valid against third parties. However, it operates as a contract inter-parties; it is valid between the parties and can be specifically enforced. The tenant in this case was therefore liable to pay rent in arrears.
6. EQUITY IMPUTES AN INTENT TO FULFILL AN OBLIGATION
If a person is under an obligation to perform a particular act and he does some other act which is capable of being regarded as a fulfilment of this obligation, that other act will prima facie7 be regarded as fulfilment of the obligation.
7. EQUITY ACTS IN PERSONAM
This is a maxim which is descriptive of procedure in equity. It is the foundation of all equitable jurisdictions.
Courts of law enforced their judgments in Rem (against property of the person involved in the dispute), e.g. by writs but the originally equitable decrees were enforced by Chancery acting against the person of the defendant (i.e. by imprisonment) and not in Rem Later, equity invented the alternative method of sequestrating the defendant‟s property until he obeyed the decree. These methods can still be used where necessary, but other and more convenient methods are often available today.
Although the maxim has lost much of its importance, it is responsible for the general rule that an English court has jurisdiction in equitable matters, even though the property in dispute may be situated abroad, if the defendant is present in this country. This was so held in Penn v. Baltimore where the Defendant was ordered to perform a contract relating to land in America. However there must be some equitable right arising out of contract, trust or fraud.
8. EQUITY WILL NOT ASSIST A VOLUNTEER
Equity favours a purchaser for value without notice. A volunteer is a person who has not paid consideration.
The exception to the application of this maxim is in Trust. In Jones v. Lock (1865) it was stated that the court is prevented from assisting a volunteer regardless of how undesirable the outcome might appear. Equity will therefore not grant specific performance for a gratuitous promise.
9. EQUITY WILL NOT SUFFER A WRONG TO BE WITHOUT A REMEDY
“Ibis jus ibi remedium”: This means that if there is a wrong, there is a remedy for it. He who seekssolace in the arms of equity will not go away broken hearted.
No wrong should be allowed to go unredressed if it is capable of being redressed by equity. However, not all moral wrongs can be redressed by equity.
The maxim must be taken as referring to rights which are suitable for judicial enforcement, but were not enforced at common law owing to some technical defect.
10. EQUITY DOES NOT ACT IN VAIN
The court of equity is shy and does not want to be embarrassed by granting remedies that cannot be enforced or issuing orders that cannot be obeyed by the Plaintiff.
11. DELAY DEFEATS EQUITY OR EQUITY AIDS THE VIGILANT AND NOT
THE INDOLENT: (Vigilantabus, non dormientibus, jura subveniunt)
A court of equity has always refused its aid to stale demands i.e. where a party has slept on his right and acquiesced for a great length of time.
Nothing can call forth this court into activity, but conscience, good faith, and reasonable diligence. Where these are wanting, the Court is passive and does nothing.
Delay which is sufficient to prevent a party from obtaining an equitable remedy is technically called “laches”.
This maxim, however, has no application to cases to which the Statutes of Limitation8 apply either expressly or, perhaps, by analogy. There are thus three cases to consider-
(a) Equitable claims to which the statute applies expressly;
(b) Equitable claims to which the statute is applied by analogy; and
(c) Equitable claims to which no statute applies and which are, therefore, covered by the ordinary rules of laches.
12. EQUITY FOLLOWS THE LAW
The Court of Chancery never claimed to override the courts of common law. “Where a rule, either of the common or the statute law, is direct, and governs the case with all its circumstances, or the particular point, a court of equity is as much bound by it as a court of law and can as little justify a departure from it.
It is only when there is some important circumstance disregarded by the common law rules that equity interferes. “Equity follows the law, but neither slavishly nor always.”
If Common law and Equity conflict, Equity prevails.
Both Common law and Equity are recognized as sources of law of Kenya by section 3 (1) (c ) of the Judicature Act.
However, only the substance of common Law and the doctrines of equity are recognized.
Their application by Kenyan Courts is further qualified. A court of law can only rely on Common law or equity as a source of Law:
1. In the absence of an Act of parliament.
2. If it is consistent with written law including the Constitution.
3. If it was applicable in England on 12/08/1897.
4. If the circumstances of Kenya and its inhabitants permits.
5. Subject to such qualifications as those circumstances may render necessary.
2.6 CASE LAW/JUDGE – MADE LAW
This is law made by judges. Judges make law when they formulate (enunciate) principles or propositions where none existed or in doubtful situations, which are relied upon as law in subsequent similar cases.
Case law therefore consists of principles or propositions of law formulated by judges when deciding cases before them.
An earlier decision of a court is referred to as a precedent if it contains a principle of law. The principle or proposition formulated by the judge is referred to as ratio decidendi which literally means „reason for decision.‟
It is a principle or proposition of law based on the material facts of the case. It disposes off the case before the court. It is the binding part in a precedent or earlier decision. It covers a group of factual situations with those of the instant case as the minimum.
Obiter dicta: These are by the way statements of law or facts made by a judge in the courseof judgment. They do not dispose off the case before the court. They have no binding force; however they may be relied upon by advocates in subsequent casesas persuasive authority in subsequent cases.
These statements of obiter dicta strengthen or reinforce the decision of the court. E.g. the “Neighbour Principle”in Donoghue v. Stevenson (1932)
Precedents may be classified in various ways:
1. Binding and persuasive precedents
2. Original and declaratory precedents
3. Distinguishing precedents
Original precedents
This is a principle or proposition of law as formulated by the court. It is the law-creating precedent.
Declaratory Precedent
This is the application of an existing principle of law in a subsequent similar case.
Binding precedent
This is an earlier decision which binds the court before which it is relied upon. E.g. a precedent of the Court of Appeal used in the High Court.
Persuasive Precedent
This is an earlier decision relied upon in a subsequent case to persuade court to decide the case in the same manner e.g. a High Court decision used in a Court of Appeal, or a decision handed down by a court in another country.
Distinguishing precedent
This is a subsequent decision of a court which effectively distinguishes the earlier precedents. It is a precedent in its own right.
TO WHAT EXTENT IS CASE LAW A SOURCE OF LAW
JUDICIAL PRECEDENT (STARE DECISIS)
Stare decisis literally means „decision stands‟. It is a system of administration of justice wherebyprevious decisions are relied upon in subsequent similar cases.
It is to the effect that each court in the Judicial Hierarchy is bound by principles established by decisions of courts above it in the Hierarchy and courts of co-ordinate jurisdiction are bound by their own previous decisions if the two cases have similar material facts.
Case law is only a source of law where the cases have similar legal points. The doctrine of judicial precedent applies both horizontally and vertically.
Case law is recognized as a source of law of Kenya by Section 3 (1) (c) of the Judicature Act.
Kenyan courts are required to rely on previous decisions of superior English courts subject to the qualifications in the Judicature Act. In Dodhia v. National and Grindlays Bank Co. Ltd, the court of Appeal for Eastern Africa lay down the following principles on the applicability of case law or Judicial Precedent in East Africa;
1) Subordinate courts are bound by decisions of superior courts.
2) Subordinate courts of appeal are bound by their own previous decision.
3) As a matter of judicial policy, the Court of Appeal as the final court, should while regarding its own previous decisions as binding be free in both criminal and civil cases to depart from them whenever it appeared right to do so.
The court was advocating some flexibility in the application of stare decisis by itself.
However, in certain circumstances, a court may refrain from a binding precedent. In such circumstances, the earlier decision is ignored. This is done in the following circumstances:
a. Distinguishing; This is the art of showing that the earlier decision and the subsequent case relate to different material facts. This enables a judge to ignore the precedent.
b. Change in circumstances: A judge may refrain from an earlier decision of a brother judge if circumstances have changed so much so that its application would be ineffectual i.e the decision no longer reflects the prevailing circumstances.
c. Per incurium: It literally means ignorance or forgetfulness. An earlier decision maybe departed from it if the judge demonstrates that it was arrived at in ignorance or forgetfulness of law, i.e the court did not consider all the law as it existed at the time.
d. Over-rule by statures: If a precedent has been over-ruled by an Act of Parliament. It ceases to have any legal effect as statute law prevails over case law.
e. The earlier decision is inconsistent with a fundamental principle of law
f. If the ratio decidendi of the previous decision is too wide or obscure.
g. If the ratio decidendi relied upon is one of the many conflicting decisions of a court of co-ordinate jurisdiction.
h. Improper Conviction: In Kagwe v R. (1950) it was held that a court could refrain from a binding precedent if its application was likely to perpetuate an incorrect, erroneous or improper conviction in a criminal case.
ADVANTAGES OF CASE LAW (IMPORTANCE OF STARE DECISIS)
1. Certainty and predictability; Stare Decisispromotes certainty in law and renders a legal system predictable. In Dodhia’s Case 1970, the Court of Appeal was emphatic that „a system of law requires a considerable degree of certainty.‟
2. Uniformity and consistency: Case law enhances uniformity in the administration of justice as like cases are decided alike.
3. Rich in detail: stare decisisis rich in detail in that many decisions which are precedent shave been made by courts of law.
4. Practical: Principles or propositions of law are formulated by superior courts on the basis of prevailing circumstances hence the law manifests such circumstances.
5. Convenience: Case law is convenient in application in that judges in subsequent cases are not obliged to formulate the law but to apply the established principles.
6. Flexibility: It is contended that when judges in subsequent cases attempt to distinguish earlier decisions as to justify departing from them, this in itself renders the legal system flexible.
DISADVANTAGES OF CASE LAW
1.Rigidity: Strict application ofstare decisisrenders a legal system inflexible or rigid and this generally interferes with the development of law.
2. Bulk and complexity: Sincestare decisisis based on judicial decisions and many decisions have been made, it tends to be bulky and there is no index as to which of these decisions are precedent. Extraction of the ratio decidendi is a complex task.
3. Piece-meal: Law-making by courts of law is neither systematic nor comprehensive in nature. It is incidental. Principles or propositions of law are made in bits and pieces.
4. Artificiality in law (over-subtlety): when judges in subsequent cases attempt to distinguish indistinguishable cases, they develop technical distractions or distinctions
5. without a difference. This makes law artificial and renders the legal system uncertain.
Backwardlooking: Judges or courts are persuaded / urged to decide all cases before them in a manner similar to past decisions. It is contended that this practice interferes
with the ability of a judge to determine cases uninfluenced by previous decisions.
1. ISLAMIC LAW
It is based on the Muslim Holy Book, the Quran and the teaching of Prophet Mohammed contained in his sayings known as Hadith.
It is a subsidiary source of law of Kenya.
It is recognized as a source of law by Section 66(5) of the Constitution and Section 5 of the
Kadhi‟s Court Act.
It only applies in the determination of civil cases relating to marriage, divorce, succession or personal status in preceding in which all parties profess Muslim faith.
In Bakshuwen V Bakshuwen (1949) the supreme court of appeal observed that:
“the law applicable in the determination of questions of personal law between Muslims was Mohammedan Law as interpreted by judicial decisions.”
In Kristina d/o Hamisi-v- Omari Ntalalaand another, the parties were married under Christian law. Subsequently the husband changed his faith and married another woman under Islamic law.
In a divorce petition, the 1st respondent argued that the second respondent was his wife under Islamic law. Question was whether Islamic Law was applicable in the divorce.
It was spelt that since the parties were married under Christian Law, Islamic law was not applicable and the divorce petition was granted.
2. HINDU LAW
It is based on the Hindu faith and philosophy. It is a subsidiary source of law of Kenya.
It is recognized as a source of law by the Hindu Marriage and Divorce Act and the Hindu
Succession Act.
It only applies in the determination of civil cases relating to marriage, divorce, succession or personal status in proceedings in which all parties profess Hindu faith.
3. AFRICAN CUSTOMARY LAW
It is based on the customs usages and practices of the various ethnic groups in Kenya. A custom embodies a principle of utility or justice. Customs are by their nature local. Not every rule of local customs is relied upon by a court of law in the settlement of a dispute.
For a custom to be relied upon as law, it must have certain characteristics:
1. Reasonableness; A good local custom must be reasonable i.e it must be consistent
with the principle of justice. Whether or not a custom is reasonable is a question of facts to be determined by the courts.
2. Conformity with statute law: A local custom must be consistent with parliament-made law. This is because parliament is the principle law-making body and has Constitutional power to disqualify the application of any rule of custom.
3. Observation as of right: A good local custom is that which a society has observedopenly and as of right i.e. not by force or by stealth nor at will.
4. Immemorial antiquity: A custom must have been observed since time immemorial.Time immemorial means that no living person can attest as to when the custom did not exist.
Kenyan law recognizes African customary law as a source of law. Section 3(2) of the Judicature
Act, is the basic statutory provision regarding the application of African Customary Law in civil cases in which one or more of the parties is subject to it or affected by it, so far it is applicable and is not repugnant to justice and morality or inconsistent with any written law
1) Guide
African Customary law can only be relied upon as a guide. Courts are not bound to rely on any rule of custom. It is the duty of the court to decide whether or not to rely on a particular rule of custom.
2) Civil Cases
African customary law can only be relied upon by a court of law in the determination of civil cases. Section 2 of the Magistrates Court Act9, identifies the various types of disputes the determination of which may be based on African customary law. This section provides that the phrase „claim under customary law‟ means:
1. Land held under customary tenure
2. Marriage, divorce, maintenance or dowry
3. Seduction or pregnancy of an unmarried woman or girl
4. Enticement of or adultery with a married woman.
5. Matters affecting personal status and in particular the status of women, widows, and children including custody, adoption, legitimacy etc.
6. Intestate succession and the administration of intestate estates not governed by written law.
In Kamanza Chimaya-v- Tsuma (1981), the High Court held that the list of disputes outlined by section 2 of the Magistrates‟ Court Act was exhaustive.
3) African Customary Law
This can only be relied upon by a court of law if one or more of the parties to the proceedings is bound by it or affected by it.
In Karuru v. Njeri, the parties who belonged to the kikuyu ethnic group married under the customs of the group and had two children.
In a divorce case, each party sought custody of children. Karuru had not applied for the return of the bride price.
However, the district magistrate‟s court awarded custody to Njeri. On appeal to the High Court, the court awarded custody to the appellant.
In the words of Simpson J, „the custom in question is however applicable to the present case and the parties are subject to it.‟
In R v. Ruguru, the defendant alleged that she was the plaintiff‟s wife under Embu customs. It was held that there was no marriage between them since whereas she was bound by the customs, the plaintiff was only affected by them.
4. Repugnant to justice and morality
African customary law can only be relied upon if it is not repugnant to justice and morality. The custom in question must be just and must not promote immorality in society.
In Karuru v. Njeri, it was held that the custom in question was not repugnant to justice and morality. In the words of Simpson J; „I am not prepared to hold that the custom is repugnant to justice and morality.‟ However, in Maria Gisese d/o Angoi v. Marcella Nyomenda (1981), the High Court sitting in Kisii held that the Gusii custom which permitted a woman to marry another in certain circumstances was repugnant to justice and morality.
5. Consistency with written law
For a rule of custom to be relied upon in the settlement of a civil dispute, it must be consistent with written law as parliament is the supreme law-making body. In Karuru-v-Njeri, Simpson J observed, I know of no written law with which it is inconsistent.‟
6. Proof
The party relying on a particular rule of custom must prove it in court by adducing evidence unless the custom is a matter of public notoriety in which case the court takes judicial notice of the custom without any evidence. It was so held in Kamani-v-Gikanga. The scope of application of African customary law as a source of law diminishes as the legal system develops.
