CUSTOMARY LAW

Lecture No 1
The application of customary law in Kenya:
The application of customary law in Kenya requires the development of Kenyan legal system. This is necessary because Customary Law was treated differently during different historical time.
Then came colonialism and with the introduction of such things as the region law
– common law, equity, statues, -they had profound impact on Customary Law.
During the colonialism Africans were allowed to keep their customary law then there came integration period, there was a parallel system, where there was customary law and a parallel modern legal system with the courts and police etc.
At one point the colonial governments established native tribunals which existed side by side with the modern legal structure.
Towards Independence there was a move towards integration, which was achieved after Independence, where every body of law was a subject to the same system, as we know it today. The question was whether this was prudent and whether we have to have a system of separate laws?
We will also examine the reception clause and reception date.
Reception clause relegates customary law to secondary position.
What was the impact of the Reception of other laws on customary law?
This question is asked because customary law is applicable so long as it is not repugnant to justice and morality.
Codification and restatements – because it is not a written body of law and it rests in the breasts of the judge, to establish it you have to prove it through evidence as a fact unlike other bodies of law, you must prove that that custom exists as a fact.
In the period before Independence, the judges were the local people speaking the local language, who knew the customs but with integration the judges could be people who are not familiar with particular customs, and thus there was a suggestion that customary law ought to be codified so that it could be referred to by the courts.
The codification was the way forward or the approach adopted mainly by the
French, Belgians and German.
Restatement is reducing customary law to written form, it is not binding but a direction to the courts which would use it a guide and the debate then was out of two systems which one was effective.
In Kenya we went for the restatements that is why we have the restatements by
Dr. Cotran.
In Tanzania they went for codification, however, the law is very dynamic, it keeps changing when you reduce it in to writing it becomes permanent and its

capacity to change is reduced and there is a danger that what is being enforced as customary law may not be customary law.
The debate is whether we ought to restate customary law or codify it or learn about it from evidence.
What is the nature of customary law, its limitations, how do you ascertain it and the issue of judicial proof – how do you prove the existence of particular customs? After that we shall consider the internal conflicts of laws.
The argument is that there could be a conflict between two different customary laws and when the conflict arises how do you resolve and what choice of law do you make for the law to apply in a particular case?
After internal conflicts we shall look at the application of customary law in
Kenya and statutory basis – Evidence Act, Judicature Act, Magistrates Act,
Marriage Act, examine various decisions made touching on customary law and lastly we will consider the future of customary law. This will be the scope of the course. To dissolve the marriage under customary law one may move the court by Plaint under the Magistrates Courts Act.
Lecture No 2
Introduction:
In most African countries customary law is the law that regulates the life of most people particularly in rural areas. For example, when it comes to matters on succession the law of Succession Act provides that the succession law that governs succession will be the one in the Act. But when someone dies the people follow customary law because succession is a personal matter, same for marriage. A lot of people marry in church but still pay dowry, as a much as the church ceremony is sufficient to validate a marriage and again it is because marriage is a personal affair, this is because law reflects the values and the norms of a particular community.
The fact that customary law is able to survive hand in hand with the statute is indicative that the statute does not reflect the values and the norms of the people that is why they still go back to customary law.
Succession Act was intended to replace customary law but in practice customary law still reigns supreme and that is why customary law of succession still applies to Africans who die without having made a Will.
But when it comes to interpretation of customary law the Court of Appeal and the High court on a number of occasions ruled that the applicable law will be the customary law and that made the Act ineffective.

That is why even in the case of marriage the Africans still comply with the requirements of customary law because the statute does not reflect the norms and values of people.
In the area of torts, the local people would report the matter to a clan leader then the principles of customary law would be used. The cases that find their ways to courts are mainly traffic accidents because the police is involved and the amount of compensation is lower than the one the courts may award.
When it comes to land, which is unregistered, customary law applies and this also applies to the land under the RLA, when it comes to determining the issue of ownership. The question is whether we need the Land Disputes Tribunals Act, because the people who preside over these disputes are not trained and these tribunals are disbanded.
Customary law applies mainly to the poor and that is why many of African elite see these laws mainly as a liability and according to them these laws need to be transcended and replaced with statute law, they say that this law is a draw back to development. Thus the question is should we transcend it or incorporate into a statute and modernize it?
The argument has always been that customary law seeks reconciliation and when you go to court you make enemies and that is how we look at it in the African sense. Our legal system does not have structures that facilitate the development of customary law, the decisions of clans cannot be upheld by the courts because there is statutory provisions for that.
Customary law is not what used to happen long time ago but what people customarily do today - you do not need very old people to get that evidence of it.
Because what was the custom 10 years ago or yesterday may not be the custom today, because custom always changes but law does not change, you do not need evidence to prove law, but you need evidence to prove a custom. The definition that was given to customary law by Western jurist is not the proper definition.
Note that, the imposed colonial laws generally in Africa – Roman Dutch law in
South Africa, Civil law in French Africa and Common law in Common law
Africa are considered to be part of the problems in African states. This is because customary laws have been utilized by the political elite in Africa to reinforce their position as the dominant ruling class.
Statute law has been imposed on the majority of the citizens of the new states.
The content of most of the statute law is colonial law – imported and transplanted from the colonizing power and most of them have been irrelevant to what the people do and to the factors that determine their life style.
The elite in most African countries rely on the imposed law to reinforce their position in the society and they in most cases make a choice where necessary of relying either on the imposed law or customary law as it suits them.
Customary law is referred to by a number of names in literature - native law, sometimes as native laws and customs, native customary law, primitive law.
Other times it is referred to as folk law, informal law in the sense it is not

provided for under a statute and in most cases applied informally by informal tribunals. Other times as living law because it is the law that people apply on a day to day basis you do not wait for Parliament to pass, no – government law, peoples law, indigenous.
The question of nomenclature:
There is an ongoing debate among Africans on the conceptual question of nomenclature should we call it native, African indigenous or customary law. The most common name is the customary law – law based on the customs of the people but what you will call it is based on your own preference.
It is related to the family of laws composed of principles of moral philosophy and prescriptions of behavior recognized by the dominant groups within specific society. The dominant group would be the elders. In matrilineal society the elders are women and property passes from female relatives, that enables the female relatives to be dominant in that sort of structure.
04.49 end
03.18. p.m. Saturday
Lecture No3
Genesis of African Customary law (whether it is indeed law):
Customary law is usually defined as a body of customs and traditions which regulates various kinds of relationships between members in community.
At various times customary law was defined using different names, the term commonly used by legislation was native law and custom.
The person who has written most on customary law in Kenya is Eugene Cotran who feels that the term customary law is the most correct and appropriate. He feels that native or indigenous law has some connotations, which are objectionable to some people and thus we should stick to the term customary law and not native law and custom. This is because calling it indigenous law and custom will imply that there are customs that do not have the force of law.
Effa Okupa - a Nigerian, stationed in South Africa on the other hand prefers the term indigenous law because it is peculiar or indigenous to a particular community. From studies in East Africa prior to Independence no attempt had been made in statutory law to define customary law and thus throughout colonialism the law just talked about the law and custom.
After Independence the law of Uganda tried to give a definition of customary law. Interpretation and general clauses Ordinance of Tanzania gives the following definition:

“Any rule or body of rules whereby rights and duties are acquired or imposed established by usage in any Tanganyika African community and accepted by such community in general as having the force of law”
The key word is usage. This means that the custom or usage must have been accepted to the extent that they have acquired the force of law they become firm rules that the members of community do adhere to.
Why do you think for example, the payment of dowry is the rule of law? Because of the element of acceptance by the community.
The key factors in determination whether the custom has acquired the force of law are usage and acceptance.
The Uganda Magistrates Act says:
“Customary civil law means the rules of conduct which govern legal relationships as established by custom and usage and not forming part of the common law nor formally enacted by Parliament.”
The Kenyan law does not formally define customary law, the closest to definition is found in the Magistrates Courts Act at section 2, which merely defines what a customary law claim under the Act means.
Compare Nigerian legislation in Customary Courts law 1963 with the Ugandan and Tanzanian:
“ Rule or body or customary rules regulating rights and imposing correlative duties ; or a customary rule or body of rules which obtain are fortified by established usage and which is appropriate and applicable to any particular cause, matter, dispute, issue or question.”
Again from this definition we note that customary law means rules established by usage and having the force of law and excludes social and moral customs.
A custom may be described as a continuing cause of conduct which by the acquiescence or expressed approval of the community observing it has come to be regarded as fixing a rule or a norm of conduct for the members of the community. For a custom to have the force of law it must be accepted or approved in the community as a rule of conduct.
Custom is seen as that which prevails amongst a set of people as a result of their consensus of opinion. It is said to be the embodiment of those principles, which have commended themselves to the general conscience of the community as principles of truth, justice and public utility.
Some commentators have compared customs with the state law and said that law is what the state considers to be good and then enacts it as law, while customs is what is considered to be good for the community and it approves it and considers it as law.

Generally customs is associated with society while law is associated with the state but both of them are defined as what both society and state consider to be good and necessary for them. That is why customary law is called unofficial law because is not pronounced by the state, but by the community.
The state may impose the law but somehow the society may find a way of conducting business in ways different from what the law requires. For example, the law of succession prescribes particular rules but the people still operate under their customs. So the customary law and the state law appear to operate parallel to each other. Customary law is the consensus of the whole community while state law is what the state considers necessary and enacts, which the society may not find necessary and may decide not to comply with it. State law sometimes is not an expression of public opinion, while customary is the consensus of the opinion of the community. However, there are minority and weaker groups of people within certain communities upon whom even customary law is imposed, for example men are stronger in the community and thus they as elders can make law that suits then and may be disadvantageous to the female part of the community.
It has always been the argument that you cannot transplant law, that is why common law did not really take root in African Communities because law is reflective of values of people in respect with their norms and times and that is why we should find a way of incorporating customary law within our legal systems. We need to recognize these institutions in reality so that they exist side by side with the modern institutions instead of killing them.
Sometimes it reaches to the extent that the state is forced to change the law in
Both law and custom are the expression and realization of the measure of society’s insight and ability and also of the principles of right and justice. Law embodies these principles as they commend themselves to the organized community (state) in the exercise of its sovereign power, while custom embodies its principles as acknowledged and approved by the public opinion of the society, rather than by the power of the state .
When the state begins to evolve out of the society the law of the state is often modeled on the custom of the society.
Customs are usually divided into 2 :
Legal custom – binding rule of law, independent of any agreement between the parties. The authority of a legal custom is absolute and for that reason it possesses the full force of law, for example the custom preventing widow remarriage. Are widows allowed to re – marry in the context of customary law?; If the rules are to the effect that a widow cannot remarry is absolute custom the widow knows that she could not remarry, but in some customs the refund of dowry occurs and this was designed to prevent remarriage.
Conventional custom – operates indirectly through the medium of agreements.
Its authority being conditional and agreement by the parties. In England the term custom is used to refer to legal custom the one with the force of law, while conventional custom refers o usage.

Custom is seen as a source of law in a sense that customary law is generated by customs. The people in that community start by forming uniform practice and by virtue of uniformity it is referred to as custom then the practice gains the force of law by being stuck in the mind of people, when ..-The common law is often seen as a child of custom . Traced to its medieval origin quite a lot of common law was custom. Judicial precedents and legislation evolved as new ways of creating new customs. Indeed customary law formed the basis for the emergence of common law system.
Remember the common law courts were enforcing the law that was common in particular area and the decisions of those were followed and created precedents.
The English legislature did not start as law making body. Its original role was that of an advisory body with some limited judicial functions. It is role was to declare law – to evaluate and say that this is the law much as what the courts do today, look at the facts and apply the law and declare the law. This is why the
House of Lords is both the Parliament and a court of law. In those initial stages the legislative role of Parliament was negligible and later it took over the task of legislating law. Therefore the common law is the product of customary law.
Blackstone has described the common law as the common custom of the realm in the 16 th century. In modern treatment custom has been subordinated to common law especially in England and various tests have been evolved to determine the acceptability of custom in the are of customary law as opposed to conventional custom. One of the tests requires that for a custom to be accepted it must have existed from the time immemorial – it must have antiquity. In England it must go back as far as 1189 but we can’t use this age in determining the custom.

10.07. 04
Saturday 10. 07. 2004.
Lecture No 4
Commencement of class at 03.28 p.m.
Customary law has extensive general application as the body of law in Kenya.
It is the law accustomed to which most people … their personal law matters such as marriages, custody of children, divorcee.
During colonial days the view was held that customary laws were special laws, regarded as special category of laws used in governing natives. For that reason customary law was considered unimportant or given inferior status.
Customary law was regarded as one applying to natives and was considered unimportant and was given inferior status compared to received English law.
What was ignored and overlooked that this was a law that governed over time the personal every day relations of probably 100% of the local population. In modern Kenya it probably governs 60 – 70 % of the local population with respect to their personal every day relations. Of course we do not have statistics on this subject.

If customary law does apply to the greater percentage of the population it would be ridiculous to regard it as a special law and English law as a general law. This is of particular significance when it is considered that up to 56 % of the local population are absolutely poor at least according to 2002 (56%) according to
World Bank figures 56% of Kenyan live below the poverty line, many of these people are not able to take advantage of English laws and formal courts because of poverty and ignorance and almost entirely dependent on customary law. I think we need a lot of field work to support these figures. These figures are just an assumption.
Whether African Customary law is really law?
There is generally a continuing bias, particularly in Western literature against anything related to Africa. African laws and African jurisprudence have always been dismissed as non – existent and the modern prescription for all aspects of
African existence have tended towards derogation of anything African. There has been this tendency to move away from African Institutions and something that should be discouraged and this is not just limited to African Traditional medicine, but it also includes law. This has been due to the fact that African law had not been written although a lot of it has been reduced to writing in recent years but the bias remains.
As soon as the Europeans arrived in Africa Africans were declared to be unlettered, uncivilized and devoid of any proper legal and political structures.
Remember the issue about the white man’s burden to come and civilize the people of Africa and give them a way of live and in their opinion Africa was waiting to subjugated and civilized. We are adopting this approach of examination of customary law in order to appreciate the current state of customary law.
…Indeed it is traced in ancient Greece and Rome. A number of leading Western
Scholars like Hume and Emmanuel Kant held the view that Africans by virtue of their blackness were precluded from reason and civilization. Hume is recorded as stated that there is no civilized nation of any complexion other than white.
These attitudes that influenced the West perception of African Customary law.
Indeed literature refers to the inhabitants of African continent as Savages.
Missionaries for example to a large extent are responsible for irrational information about customary law.
Western lawyers were late in coming to the study of African customary law with the approach that there was nothing legal for lawyers to study in Africa. They were more interested in imposing their legal system rather than studying the local system and integrating it into their system.
The restatement project started with the view to preparation to the integration of the customary law into the English system for the preparation of the dual legal system. An author by the name Derrett indicates that the earliest scholars of comparative law were not at all interested in African law and did not recognize it

as a legal system. Indeed a lot of the work done in African customary law in early 20the century was done not by legal scholars but by anthropologists. The negative assumptions of the African customary law relate also to the present to the effect that post – colonial Africans have really nothing of worth in terms of religious or cultural traditions to fall back on. We see ourselves more as
Christians rather than African Traditionalists and there is not tradition that
Africans can rely on as Africans. For that reason it has always been assumed that the only viable way of development was to modernize African and African in more or less along Western lines. We have to copy the paths that the West had followed. All views that traditional Africans having no proper laws and did not recognize African law as a popular system of laws.
Most Western legal scholars were grounded on the positivist legal philosophy, which views law as a command from a sovereign. Most AFRICAN Legal systems were not modeled on the principles of positivism and therefore in the eyes of positivists African legal systems were not proper legal systems. The early visitors to AFRICA found all sorts of legal systems in operation but they did not recognize them as such. It was not law to them because it was not a recognizable system to them it was a vast jungle of local laws which were not visible as laws or legal system.
The laws they found were oral and not dependent on documentation and the same relied on non- legal sources. To these Western Scholars these looked like cultural norms and ethical habits but not laws, because they were not written and documented they appeared to be cultural habits and norms and for Western scholars a law must be written and that us why Islamic law is regarded as superior to African customary law.
Because of these approaches AFRICANS are encouraged to copy Western or
Muslim systems of law in order to develop in to civilized world.
Okupa argues that Africans had law before the advent of colonialism and justice ruled and that is why there was not anarchy. She quotes records of geographers and historians who visited Africa before the Europeans and who noted that
African Kings were renown at the time for their sense of Justice.
She concludes that African communities had a way of formulating their own laws and setting out the basic legal principles to meet the communities needs.
Anthony Allott who has done extensive work on African customary law reckons that Western jurist came across African legal systems they found that they did not match Western laws and legal systems and concluded therefore that they were not laws and that the societies they found did not have recognized laws.
According to Moore no society is without law, every society has law and all significant social institutions also have a legal aspect, whether we are talking about marriage as an institution or others they all have legal aspects. Remember that when the Europeans had come to Africa they considered that dowry was primitive customs.

Alott concludes that the unwritten nature of African Customary law did not mean that there were no laws in Africa, he states that there were in fact well recognized principles and rules if law and even specialist in legal theory and procedure, he further states that African law was formal, for example, the law relating to marriage, transfer of property , disposal of estate. These were formal laws, clearly discernable laws. He concludes by saying that African customary law was by all means law.
African Customary law under the Reception of English law (because it is the
Reception that classifies African Customary law and sets the test of repugnancy)
The most common feature of the general legal systems of Common law Africa is that it is largely based on the English legal system.
This can be explained by the fact of the respective country’s legal history and in light of the political history of those countries to understand why these legal systems are based mainly on English law.
There are 3 main phases of periods in the legal history of Tropical Africa:
The pre-colonial period;
Colonial period;
Post colonial or independent period.
Pre-colonial period:
With regard to Pre – colonial period, before the arrival the Europeans indigenous legal institutions were the law.
These institutions were for the most part customary in origin and type. There was also to be found a certain amount of legislated law, particularly in the centralized Monarchies (Kingdoms in Uganda, South Africa – the Zulu, Central
Africa – where law was handed down by the rulers and also in the Islamic areas, particularly in West Africa)
Indigenous customary laws were not uniform, there were points of similarity, which transected ethnic groupings, but there were also enormous in structure of the laws and contents.
These variations were brought about by different stages of economic and political development, different social and kinship systems or different religious believes and different cultural practices of the society.
One basic characteristic, which was common among the communities, was that the laws were largely unwritten. This had important implications on the way the new rulers were to handle the preexisting laws in their colonies. They were mainly subordinated to English and Islamic laws.
The hesitating recognition given to customary law and the tendency to separate its administration from that of imported law were mainly due to the unwritten character of customary laws. During much of the colonial period African customary laws were administered by the Native Courts, which were regarded as

part of the Provincial administration thus they were not seen as the part of the country’s legal system.
Colonial period:
Regarding the colonial period each new power introduced its own legal system or a variant of it as the fundamental or general law of the colony. This clearly meant that of English law was the fundamental law then customary law was reduced to subordinate law.
The second thing that occurred during this period is that the colonial power permitted and regulated continuance of African law and African judicial institutions, except where they said that law and institutions run counter to the demands of colonial administration or where they were thought to be repugnant to the civilized ideas of justice and humanity.
This general approach was also the approach adopted by the British colonial government in Kenya.
The British in seeking to develop a legal system in Kenya faced the basic problem of developing a legal system that would embrace the whole country. This was compounded by a number of factors:
Factors that affected the development of unified legal system in Kenya:
The presence of difference races in Kenya and the existence of conflicting ideas amongst them regarding the laws that should apply
The presence of difference races in Kenya and the existence of conflicting ideas amongst them of what ought to constitute the legal system of the country. The
Muslim population at the cost wanted their own legal system preserved, while the in-coming British settlers were insistent on being entitled as of right to the
English legal system. The Africans had not say and the Muslims had a say because of the arrangement of sale of coastal strip of Zanzibar. There were also
Hindus another Asians.
There also existed conflicting policies:
The colonial policy at the time was to introduce a legal system of justice that would have a civilizing inference, the thought was that the local population was not civilized. However, there were short of staff, there were not enough
European officers on the ground and for that reason the colonial government was forced to maintain and preserve traditional institutions. That is why it was not possible for them to destroy the existing traditional system of justice and that is how we ended up having dual legal system.
End of class 05.55 p.m. xcv Saturday 24. 07. 2004
SOAS – School of Oriental and African Studies
Lecture No 5
African Customary law and the Reception of English law:
We are looking at the phases in legal history of Kenya in an effort to explain the status of customary law today. We saw that customary law applied to the people of Kenya and the introduction of colonial law begun to crepe in.
And then we looked at the factors that compounded the implementation of the
English law because there were a number of different people living in Kenya and they had their own bodies of law that governed them.
The Europeans wanted a system of law that they understood but it was not possible at that time because there were no enough officers on the ground to carry on the system.
The conflicts that characterized the advent of colonialism dominated legal developments in Kenya for most of the colonial period and they manifested themselves mainly in 3 ways:
Conflicts that dominated the colonial period of law development:
Disputes as to which of the 2 systems should apply to Africans:
In the confrontation between the indigenous legal systems and the colonial systems of justice (the intention of the colonial government was to replace
African customary law with the English law, this was championed by the judiciary because they were not equipped to apply customary law since they received training in English law and whenever they were called to decide the disputes involving Africans they preferred to apply the English law even though the majority of the population wanted to resolve their disputed in the ordinary courts of law and thus there were disputes which of the 2 systems of law should apply to Africans.
Division in the administrative and judicial approach to the administration of justice: There was division in the colonial government regarding the most appropriate approach to the administration of justice. The judiciary was uncomfortable with the system where customary law was applied through administrative structures
(because in their opinion there ought to be separation of power but when the law is in the hands of the administrative authorities there was no separation of power). But the administrative authorities were of the opinion that separation of power was something alien to the Africans and that the court system was assisting them in controlling the population. Their decisions were that the administrators could enforce their decisions by the native tribunals and thus there was a clash of these
2 arms of government in this period.
Segregation of the legal system:
The conflicts were manifested in the segregation of the legal systems – different systems applied to different races and the institutions that applied the law were also segregated.
Reconciliation of colonial and indigenous systems:
A clearly definable pattern appeared and the early years of East African
Protectorate saw greater preoccupation in reconciling the colonial and the indigenous of the 2 systems.
In the middle age of colonialism the period between 1920-30 saw a clash between the judicial and administrative view on the status and place of customary law.
Integration of legal system:
The twilight of colonialism was preoccupied with problems of the segregated system, The concern in these final years was with integration of the different systems of justice (that is the ending of the dualism which existed at the time).
A number of factors influenced this, but the concern was with ending the system of justice where you had 3 parallel systems operating at the same time. And the colonial government got concerned with the future of the customary law upon
Africa getting Independence and Africans began to sit at the Legislative Council and at this time we begin to hear the restatements and codification projects. This was because of concerns that most of the judicial officers did not come from the areas or the stations where they were based and thus how were they going to apply customary law?
One suggestion was to restate it and the other was to codify it. These issues were raised towards the end of colonialism. The African elite favored an integrated system. However concern was that in integrated system it would be difficult to apply customary law.
The origins of colonialism in Kenya are traceable to the period of the British
Consular Jurisdiction when the Sultanate of Zanzibar brought himself under the protection of the British. There were series of agreements between the British and Sultan of Zanzibar and there were a number of treaties signed and a number of courts were established but they had no jurisdiction of the Africans in the interior but only at the coast where they existed.
The situation changed when they took over the responsibilities of the British
Council… The Company permitted the Muslim Courts within their jurisdiction to have jurisdiction over Muslim population within their areas. In the interior areas where the company had control of jurisdiction the indigenous communities were allowed to retain their traditional legal systems

The next developments came in 1895 when the Protectorate was declared of what is much of Modern Kenya today and the first step was to allow Muslim courts and Muslim law to continue being preserved at the coast.
British subjects within the jurisdiction of the Protectorate were subjects to the law of England and the Africans living within the radius of 5 miles the English controlled station were also subjects to English law. But the rest of the African population was left to traditional judicial machinery and at this time there was very little interference with those traditional systems. These arrangements were confirmed by the East African Order in Council of 1897 and by the Queens
Regulations that were made under that Order in Council.
The Regulations established a legal system based on the division of subordinate courts: Native;
Muslim and
Colonial Courts.
It also established a dual system of superior courts:
There was Her Majesty’s Court for East Africa; and
The Chief Native Court, which dealt mainly with matters of customary law.
The Chief Native Courts were of 2 types established under the Native Courts:
The colonial and
Indigenous court.
The Colonial Courts:
The colonial native courts exercised magisterial powers – they applied the Penal
Code, Criminal and Civil Procedure Codes.
At the coast the colonial native courts were guided by the principles of Islamic law and at the rest of the country they were to have regard to the native law and customs. They were presided over by the colonial officers (Whites) and they are the predecessor of the modern magistrates’ courts.
The Indigenous Native Courts:
The Indigenous Native courts were of 2 types:
Those were the courts that were within the coastal strip and
The courts in the interior.
The Coastal courts were:

Liwali;
Mudir;
Qadis/ Kadhis courts and they basically applied Islamic law and presided over by Muslim officials
The courts in the interior were tribal courts and they applied customary law of the applicable tribe and were headed by local chiefs and elders.
Thus from this background the courts were segregated and this was to remain the position for a long time up to Independence where we achieved one system of justice. A re-organization of the court was done in 1902. The system created in 1902 was to be affirmed in 1907 through the court ordinance of that year.
The 1907 Ordinance made a distinction between the subordinate native courts and native tribunals.
The Native Courts were divided again into 3 classes and these are the classes we talk about today:
The first class is the court held by the Resident Magistrate mainly in Nairobi and
Mombasa and the Provincial Commissioner;
The second class was held by a District Commissioner
The third class was held by what was known as the Assistance District
Commissioner and what became to be known as the DO later.
These courts had both civil and criminal jurisdiction and applied mainly statute law and to some extent African customary law.
And where they applied African customary law they relied on assessors to ascertain African customary law. The practice of using assessors is traceable to the early days of colonialism (since this type of law is not written they needed someone to assist them to ascertain the law).
The Native Tribunals:
The Native Tribunals on the other hand consisted of Headmen or Councils of
Elders with jurisdiction conferred by the Governor.
And this jurisdiction was conferred to members of the tribe of Council.
They exercised jurisdiction over African Customary law matters exclusively, in the initial stages they had no jurisdiction over statutory matters.
The tribunals were constituted by government appointed Headmen on one hand and traditional elders on the other hand.
The traditional elders were considered to be subordinate to the government appointed elders.
The tribunals exercised civil and petty criminal jurisdiction, where the offence committed was considered to be major offence the same fell under the
Subordinate Native Courts.

In civil matters the tribunals mainly sought to adjust claims that is to resolve them through reconciliation.
In criminal cases they awarded compensation according to the custom of the tribe and in some circumstances recommended imprisonment where compensation was inadequate. The decisions of the tribunals were subject to review or revision by the administrative officers, who assumed the supervisory role over the tribunals and this took the form of re-hearing the case.
A decision of an administrative officer could be appealed against to the High
Court.
And that is where the practice you find today in the rural areas of taking the matters to the headman and then on and on to the Court level, however, that is not the practice of the law because the law does not set system of that type.
There was a connection between the native tribunals and the native administration (colonial officers who exercised administrative control over the
Africans in the African areas).
It was the administration rather than the judiciary, which supervised the tribunals so that although the tribunal exercised the judicial role or function there were really under the control of administration.
The native tribunals headed by Headmen who were also part of the administration. The headmen were local officials who worked under the supervision of chiefs and their assistants and thus there was no separation of power on this lower level of judicial system and one may say that at the local level the native administration discharged judicial and administrative functions.
The administrative officers at the time favored the system where the native tribunals formed part of the native administration. Their argument was that the arrangement eased the work of administrators because their decisions could be easily enforced by the native tribunals and they also argued that the system was also traditional in the sense that the separation of power was a concept alien to the Africans.
The appointment of the headmen to preside over the native tribunals fundamentally changed the nature and function of the traditional judicial body.
In the traditional setting the traditional judges merely supervised the process of reconciliation and acted mainly as facilitators rather than the decisions makers, they acted as the mouthpiece of the groups involved.
The native tribunal was therefore a departure from the traditional judicial body, its approach to dispute resolution was largely alien to the traditional system.
In the first place the native tribunal was an imposition of the statute and had very little connection with the parties involved in the dispute. In the traditional

setting the judicial body would be composed mainly of the members of the family and clan but in the native tribunal they were strangers.
In civil cases tribunal did not seek to reconcile the parties it imposed or awarded judgements instead. In the traditional setting the question of a party losing or wining did not arise because reconciliation was sought, but the native tribunal was a creature of the law and thus resolution resulted in one party losing and the other winning.
In criminal cases the tribunal imposed the law of the State. The tribunals survived until 1951 then they were replaced by the African Courts established by the African Courts Ordinance of that year.
The establishment of the African Courts followed the recommendation of the
Arthur Phillips of 1894. He recommended that the tribunals should be modernized and integrated into the modern judicial system and also suggested that educated Africans (as a measure of modernization) with professional legal training be appointed to the tribunals.
After this the colonial government established the GEANS School to train
African personnel for the native tribunals it was established for the purpose of modernizing the tribunals.
He further recommended that the judicial officers be appointed to supervise and coordinate the development of the tribunals. Most of these Recommendations were subsequently implemented. In 1945 Dr. Phillips himself was appointed the
Judicial Advisor to the native tribunals. It comprised of judicial officers and whose responsibility was to supervise the tribunals.
In 1948 a Judicial Advisor was appointed to Nyanza Province where there was a high incidence of litigation to provide localized supervision, thereafter other officers were appointed to the other parts of the country to supervise thee tribunals. The African court of 1841 retained the powers of PC and DC’s and the law, practice and procedures remained largely the same.
The main changes introduced by the Ordinance concerned the establishment of a new appellate system.
African Courts of Appeal were established in each province with the right of appeal to the DC and thereafter to the PC.
The final appellate court was the Court of Review. This court was composed by
Judicial Officer appointed by the CJ, the Chief Native Commissioner (the highest civil servant) , African Court Officials and an African appointed by the government. The Court of Review exercised the power to confirm, vary, reverse the decision or to order a re-hearing,

This system was established in 1951 remained until after Independence, when the African ordinance was replaced by the Magistrates Courts Act (Cap 10), which provided for integrated systems where the colonial courts and the native courts were merged into once system of Subordinate Courts.
Thus the African Court were bought to an end by 1950.
The development is attributable to 2 facts:
African representation in the Legislative Council;
Change of attitude of the colonial government, which came with the agitation for political independence.
During the debate in parliament when the African Ordinance was discussed
African members of the Legislative Council expressed their opinions on the system of courts that the African elite desired:
They were concerned of control by the administration of the courts and by the native tribunals and what they favored is the integration of tribunals in the mainstream courts system.
They were calling for a separation of power because they wanted the judiciary to control the African system. Their argument was that the rule of law and the benefits that accrued from that principle should also be enjoyed by the Africans and they were also seeking an end to the supervisory function of the administrative control;
The second concern was the ban on advocates.
Before the advocates were not allowed before the native tribunals or the African courts. This is because advocates were likely to confuse them since they were not trained in legal matters, and also most of the advocates were not trained in
African Customary law and had no background at all in customary law and thus could not properly function before these courts.
They suggested that advocates should be granted the right to appear at the appellate stage, not at the level of tribunals. And those advocates should be allowed to appear where the court is applying a statute law because the parties may not be able to interpret the statute on their own.
In 1950 a number of countries gained Independence and the British Colonial office began to understand and appreciate that time has come for de colonization and begun to think about the future of the African customary law and the African customary courts.
The colonial government begun to think about the integrated system of justice and their concern was how customary law would fair in such integrated system.
This led to series of African law conferences held in London, Dar and they were attended by law officers from British Africa.
The main theme was the integration of the African Courts into the mainstream system. In preparation for independence and with it the integration of the courts led the colonial authorities to consider the question of ascertaining African Customary law with the objective of making it easier for it to be applied by the ordinary courts of law.

This led to the codification and restatement projects.
These 2 projects entailed the recording and conversion of African customary law into writing. From 1897 when the modern legal system was established to the
1950 no one thought of recording African customary law.
Codification:
Codification seeks to produce a unified customary law and entails producing one code for the entire country. It would be a summarized version of all the people resident in this country and it would be binding and have the same effect as a statute it is not a guide it is binding.
Codification is criticized because it tends to crystallize customary law yet it is a very dynamic body of law and when you reduce it into writing you freeze it, and it is likely to cause injustice to those relying on it, because it is very dynamic. The danger with this is that the customary law if codified could be very different from that which is actually practiced by the people.
Tanzania opted for codification where the government developed a code of customary law for the entire country.
Restatement:
Restatement on the other hand entails the reduction of African customary law into writing in English rather than in original language. A restatement is not binding like a code and it’s a mere guide to the court.
Kenya decided to go for restatement with the view to restating the principles of
African customary law on an ethnic basis tribe by tribe following a uniform format. The restatement started as a project of the School of Oriental and African
Studies of the University of London of 1959.
In 1961 Contran of SOAS was seconded to the government to start recording the customary law offences and produced a restatement of customary criminal law offences which came out in 1963 and also did a restatement on family law and succession both of which came out in 1969.

African customary law is a neglected area of law and even the restatements project has not been decided whether it was a success or not.
End of class 04.51.p.m.
Missed last class

Saturday
Lecture No
07/ 08.04
03. 28 late start:
Differential law of adultery – a husband can legally complain about the wife’s extra marital affairs and but not the other way round.
Under the Magistrates Act the husband can maintain an action for compensation for adultery but the wife cant.
The differential law of status:
The husband enjoy more legal rights as compared to the wife.
The repugnancy clause has also been used in the area of family relationships, particularly relationships between parents , grandparents and the children.
In some cases courts have overlooked customary law and applied English law particularly regarding custody of female children of tender years.
But courts have also upheld customary law provisions in the area of custody
In the case of Re GM the court upheld customary law the circumstances were that a young child had lost her parents during emergency and was in the custody of a well to do woman from a different tribe.
This de facto arrangement appeared to be in the best interest of the child but the child’s uncle claimed the child under the customary law as a lawful guardian.
The court in awarding custody considered both the English law and the principles of customary law and found that the uncle was the most suited person to take care of the child and in the opinion of the court there was nothing repugnant of the uncle being granted the custody of the child under the circumstances. In the case of Karugu v. Njeri, the courts upheld African Customary law and in this case the contents were about the custody of the children as between the husband and wife who were married under customary law and divorced.
The African court ( early 60’s the African courts were still in existence) awarded the four children to the wife. The girls were given to the mother and the boys to the father. On appeal to the High Court the judge called for expert opinion on
Kikuyu customs and the experts who gave evidence on Kikuyu custom related to the custody of the children stated that where divorce occurs the children go to the father regardless of their age unless the father demands in return the dowry whereupon the children go to the mother. In this case the court chose to be guided by the custom and did not find it repugnant to justice and morality and custody was awarded to the father.
In recent times the tendency of the court is to award custody to the mother especially in the cases where the children are of the tender years.
Today the courts go by the statutory provision of the best interest of the child and customary law is not applicable in such cases.

In the area of property repugnancy cases involving property rights are less common compared to those involving personal relationships. It is in the are of personal relationships is where you get strict applications of repugnancy clause because it involves large application of morality. The other thing is that property relationships are now subject to statutory law and thus there is application of
African customary law.
Can public policy be used instead of application of repugnancy clause?
In the Ghana the repugnancy clause has been abolished the courts use the public policy as a test of repugnancy and where the custom is found to be repugnant to public policy it is struck down on that ground. These are issues based on morality , discrimination , unreasonable or against human rights then it is considered to be against public policy. However, I think the change is really cosmetic and it sounds very much as repugnancy to morality and justice.
Inconsistency:
The Judicature Act says that African customary law will only apply where it is not repugnant or inconsistent with the written law. ( Section 3( 2) of the
Judicature Act).
Does written law only apply to the legislation or is it broader than the legislation? Interpretations and General provisions Act defines the term of “ written Act” – any Act, any applied Act and any subsidiary legislation and this provision makes customary subordinate to legislation and thus any incompatibility with legislation renders customary law inapplicable.
So does this cover common law and equity ? Does this cover equity and common law under written law?
Opinion on this is divided
On the one hand it would appear the incompatibility should be confined to legislation and thus section 3(2) of the Judicature Act should be read together with section 2 of Cap 2;
On the other hand it can also be argued that the Judicature Act provision applies to both legislation and common law and equity/
The application of the common law and equity is provided for by a written law and hence common law and equity should be considered as written law. And therefore inconsistency with any law would include inconsistency with common law and equity.
Whether inconsistency provision only applies to legislation only applies to the written law - whether you give broad or restrictive definition of written law. If you go by restricted interpretation under Cap 2 then the inconsistency is only with the legislation excluding equity and common law.
Ascertainment and prove of customary law:

All the laws are usually judicially noticed such as statutes - in other words you don’t have to prove them. Customary law has to be ascertained and proved in court as a matter of fact and evidence which means that it has to be treated differently from other legislations and common law and equity. From colonial days if you are relying on customary law you have to prove it as a matter of fact by evidence that it actually exists.
There are a number of reasons or explanations why customary law has to be proved as a matter of fact instead of judicial notice.
Reasons for proof of customary law as a matter of fact by evidence:
Throughout colonialism judges and magistrates were expatriates and thus they had little knowledge and little exposure of African Customary law. And at the time there were very few records of customary law and thus these people had nothing to fall back on for reference and therefore for them to apply customary law they needed the same to be ascertained and proved. They needed the ascertainment by evidence to prove that the customs exists before they can apply it. The courts were organized on parallel basis – there was a dual system.
The expatriate judges mainly applied the statute law and the common law and to a very limited extent applied customary law.
The judges in the Native courts and tribunals who were very well vast in customary law applied customary law. Because of this duality the formal courts did not deal with customary law on regular basis and thus they did not develop a body of judicial precedent they could rely on when it came to dealing with customary law disputes. They simply had not case law to rely on and thus customary had to be proved.
Coming of Independence led to Africanization of the bench. However this was very slow and the Bench was truly Africanized only in 80’s and this did not stop the ascertainment of African customary law, because many of these African judges were not Kenyan and thus were not familiar with the local customary law.
They also had not proper materials upon which they could rely.
The dynamism of African customary law was also the other reason and because it keeps on changing all the time and thus we have to keep on ascertaining it all the time and thus we cannot rely on what it was say 1- years ago.
Then the social differences between the litigants and the judicial officers because they are quite removed from the customary law and thus they need to prove the custom before they can apply it.
In England any local custom must be proved by the party alleging it. During colonialism African customs were treated similarly to English customs any one relying on it had to prove the custom and the argument was the customary law derogates from the general law and it was regarded as an exception to the general law.

To and extent it was regarded as foreign law because the general law was the
………..
To the indigenous it was not a variant from general law. Indeed in the Native
Tribunals where the judges were conversant with the law there was no requirement of ascertainment because it was said to be in the breasts of the judges. To the natives it was not necessary to borrow from English law the rules for ascertaining African customary law where it became necessary. And it was on this basis the English test of Antiquity was abandoned ( the test of existence of customary law – where a custom was applicable if it dates from 1100 AD)
Since the law was unwritten it is subject to the following rules:
It must be specifically pleaded in Pleading if you want to rely on it;
It must be proved by witnesses
There is no express legislation on this requirement but this is a standard requirement of civil procedure where you are relying on a fact or where you intend to rely on a fact you have to plead it and since customary law has to be proved as a fact and ascertained as a fact t then it is a matter of procedure that you must plead it otherwise you have not basis to lead evidence on existence of customary law.
The law relating to prove of customary law of witnesses was stated by the Privy
Council in the West African case of Angu v. Attah (1916 P.C. @43).
The rule was laid as follows:
“ As is the case with all customary law it has to be proved in the first instance by calling witnesses aquatinted with the native customs until the particular customs have by frequent prove in the courts become so notorious that the courts will take judicial notice of them.”
This statement envisages ascertainment of customary law in 3 ways:
Through evidence or through prove by witnesses;
Judicial precedence;
By way of judicial notice.
The position stated in the above case was adopted in many African countries including Kenya.
The Court of Appeal in the case of Kimani v. Gikanga (1965) E. A L. R @745 stated in the majority judgment that because of the lack of the authoritative text books on customary law and also because of the lack of case law on customary law it is necessary that a party relying on African customary law will have to call evidence to prove the African customary law as he would prove any other relevant fact in his case.
The majority judges were of the opinion that the position in Angu V. Attah is still the law in Kenya. The dissenting judgment stated that the case is not the legal

position in Kenya by virtue of section 59 and 60 of the Kenyan Evidence Act ( the provisions dealing with judicial notice). The position stated in Kimani V. Gikanga is still the position of customary law in Kenya where it must be proved as a matter of fact.
Customary law can be ascertained in a number of ways:
Through witnesses;
Through Assessors;
Through Referees.
The Kenyan practice is to rely on witness evidence and the other 2 are not so common. The system of relying on Assessors is only used in criminal procedure and is hardly used in civil law or civil practice. The device of Referees is not used in
Kenya but is commonly used in countries like Tanzania.
The statutory basis for prove of customary law through witnesses is section 51 of the Evidence Act , which requires that evidence concerning opinions relating to customs can be adduced by persons who are likely to know of the existence of the customs. Section 51 does not envisage expert evidence or testimony and therefore witnesses giving evidence on customary law need not be experts on customary law. Indeed section 48 of the Act which deals with the Experts evidence does not cover evidence on African customary law.
Basically expert evidence is not necessary to establish African customary law and witnesses on African customary law need not even be Africans or Africans of that custom. All you need is the person who knows the customs.
Two types are envisaged by the Evidence Act:
Witnesses who are likely to know the fact
(Witnesses of fact – persons to testify that on such and such occasions in the past a particular thing was done in a particular way in other words persons who can testify that this was a customs in the past or a tradition in the past)
Professors of law who have written on such matters.
Witnesses of opinion – those who can express opinion on their previous experiences or expert knowledge as to what a rule of constitution of customary law may be – they should be members of that community because they are persons relating to the practices of that custom in the past as a matter of fact
In both cases we are talking about previous experience and which may imply that witnesses must be people who are elderly but you should note that there is at present an increasing difficulty at determining who are likely to be knowledgeable in customary law, thus suitable witnesses on matters of customary law.
Three factors can explain this difficulty:

Modern education – people lack the necessary knowledge of African Customary law and the tendency these days to appoint witnesses who are elderly but they may not be able to provide necessary information. They are appointed simply because they are elderly’
The dynamist of customary law – it is difficult to know the right custom because it is changing so often and there may be a tendency to reproduce old customs or old customary law which is no longer in force. Some commentators say that the customary law on the ground is a step ahead than the law in the books when you call a witness he is likely to say that this was the custom rather than this is the custom; The written authority of text book, reports and the restatements – these are quite useful but their adequacy and accuracy is questioned. This is because they may be biased and not accurate.
Assessors may ascertain customary law and legislation often provides for it.
Assessors are not witnesses and they sit with the judge and they are kin to Jurors or to a Jury in Western jurisprudence. The practice of using Assessors is more common in criminal law in Kenya than in civil law or in civil practice. The criminal law in Kenya Assessors are used in murder cases triable at the High
Court. Their functions are twofold:
They are required to assess or weigh the evidence and whether the accused is guilty or not in the light of their special knowledge of African Habits, customs, modes of thought and language. The rationale being that the Assessors are more qualified to judge the probability of the story told by a witness and they are also more qualified to determine his demeanor. The opinion they give is not binding to the court the court may chose to go by it or to disregard their opinion.
To advice the judge or magistrate on matters on which the have special knowledge and in particular of the relevant African customary law.
The idea of Assessors to sit with judges to advice them on the matters of law and customs has its genesis from British India, but the Indian practice differs from
Kenya practice because in India Assessors are actually equivalent to witness.
Assessors do not do it from the witness stand and they are not subjected to crossexamination. Of course it can be argued that the court cannot form its opinion on a person who was not called as a witness. This question whether the court should place its reliance on the parsons who is not called as a witness, this is a departure form the English positions, where the opinion of the court may be relying on the opinion of the experts but not other persons.
In R v. Mutwiwa it was held that the court could rely on the opinion of Assessors regarding the existence of certain custom, if it is supported by evidence.
There is no provision for Referees under Kenyan law. In some African countries provision is made for reference on some point of the law to Referees, these are

usually traditional Chiefs or other persons or bodies with special knowledge on
African customary law. When you are faced with an issue instead of solving it yourself you refer it to Referees. In Tanzania there is a provision for referring the matter on African Customary law to a panel of Chiefs
Zsd
In some cases
Judicial notice;
Judicial precedence;
Reliance on text books and other sources:
With respect to judicial notice that in common law AFRICA was stated in the rule in the case of Angu V. Attah, where particular customs have frequently been proved in court to the extent of becoming notorious the court should thereafter take judicial notice of them. This rule is the main basis upon which customary law is notice in Kenya,. The Kenya Evidence Act does provide for judicial notice, section 60 of the Act provides that court should take judicial notice of all written laws, all other laws, rules and principles written and unwritten having the force of law in any part of Kenya. The reference to unwritten law in section 60 implies that the courts may take judicial notice of
African Customary law.
Judicial precedence however on the other hand and in particular the Court of
Appeal in the case of Kimani v. Gikanga takes the view that the rule in Angu V.
Attah applies and that African customary law cannot be judicially noticed unless it has become notorious ( frequently enforced by the court). This judgement had a dissenting judgment based on the section 60 of the Kenya Evidence Act.
Reliance on Kimani and Angu is the basis for ascertainment of African
Customary law as law rather than fact.
With respect to text books and other written material you will observe that where the same are treated as binding or conclusive then the book is an authority and the court administers African Customary law as law. If the book or restatement or whatever written matter is treated as evidence rather than law of what African customary law is then the material should be treated as establishing African customary law as a fact and would not be of binding effect, and is treated as an opinion giving the court discretion as to whether to treat customary law as law or not.
Section 33, 41, 60 are the provisions for ascertaining African Customary law as a matter of judicial notice. Where there is no express legislation for use of documentary sources then one falls back on the general rules of English evidence law, and where one relies on English law of evidence there are 2 options:
To call an expert witness of customary law who may then produce to court books of authority on which his opinion is grounded (when such books are produced by expert witness the authority will not be binding but just as a question of fact
Where the judge is entitled to take judicial notice of a fact that he may be aquatinted with but referring to any document ( articles, official declarations of

African customary law and restatement, published and unpublished reports, reported and unreported cases text books and son on) for reference and guidance. Of course as an advocate you will urge the court to take judicial notice of the fact that this was the custom at this particular time
Saturday
Many rules of African customary law developed from religious practices and believes. With respect to Christianity note that during colonialism conversion to
Christianity was often treated as a change of Family law system particularly in respect to matters of marriage.
Cole v. Cole , the position stated in this case is no longer the position , therefore when it comes to the law to be determined the fact that you are Christian will not help in deciding which law to apply, this fact will be irrelevant.
With respect ot Islam, Islam has intermingled with African customary law in some places in Kenya, particularly in the North Eastern Province and at the
Coast. The African communities in these areas have not totally adopted Islam, they are subject to both Islamic law and their respective customary laws.
In these communities in resolving disputes of a personal nature the courts tend to apply Islamic law and tend to give it preference over customary law and this has to do with the fact that Islamic law is regarded as written law and thus superior to African customary law.
The other choice or factor affecting choice of law or choice of remedy, one can decide to opt for customary or statutory remedy where this is possible. Say like, in case of rape or defilement of a minor, the family of a victim may pursue the claim under customary law such as bringing an action for seduction under customary law or an action for damages for the tort of trespass to person, but one cannot seek both. You cannot seek claim for seduction under customary law and then bring an action under civil law.
Islam is said to be a complete way of life and thus when you convert to Islam, you deny yourself all other rights.
In the case of Mwaura son of Kamau v. Gatoto son of Mwangi 1962 EA @528, A father sought compensation in court under the Fatal Accidents Ordinance for damages in respect of death of his son to the Supreme court and the holding of the Supreme court was that the claim was incompetent since the Plaintiff had already opted for a customary law remedy in the African Court. and at the same time he also sued in a local African court and was awarded a customary law compensation for the death at the rate six Sheep and ten fat rams. The court claim was

Read Nyokabu v. Public Trustee 1965 EA @530
Choice of remedies are also relevant with relation to limitation of actions.
African customary law is extremely flexible when it comes to the limitations of action, some people say that it doe not know limitation of actions and you can bring your claim at any time. Thus you can bring the claim any time because there is no limitation of time and thus you can opt to customary law remedy.
Note however, the Kenyan courts have generally disallowed customary law claims when the same are filed after a considerable lapse of time mainly on repugnancy grounds. Look at the case of Khaemba v. Khwatenge 1953 Vol. 1 of the Court of Review @3.
The other factor is the nature of the claim, relationship or transaction, where the parties to the relationship or transactions are Africans that will be the Prima
Facie evidence that the parties to the transaction are governed by the customary law particularly if the subject of the transaction, claim or relationship is not governed by statute. Where the parties are no – Africans there is presumption that the same is subject to other laws (other than customary law). In most bilateral relations parties can always opt for one law, for example in case of marriage parties can choose between African customary law and statute.
Future of the African Customary law:
The future of African customary law needs to be secured and developed on sound lines if it is to be preserved as the source of law.
The first step that needs to be taken is ascertainment and authoritative restatement of different customary laws , which means recording it and stating in a different language . Restatement faces a number of serious problems or hurdles: Lack of rules for dealing with different situations. The focus of much of customary law is compensation and reconciliation and there are not many alternatives to those two;
The other problems is deciding which laws are legal and which ones are social, religious or moral and a lot of customary laws are not distinctive of legal and social norms;
The other problem relates to differences between the laws of different ethnic groups, because the whole idea of restatement and ascertainment is to achieve uniformity of law, it becomes rather difficult to achieve uniformity in the circumstances; Urban areas tend to present a different problems because new rules have evolved where African customary law does not seem to provide rules, because you get a mixture of ethnic groups, and thus there is problem which law to apply.
After Ascertainment African customary law should be unified this may be possible since most African customary law have great similarity.

The object of unification should mainly be to create one central or general system of law applicable to every one.
After unification an attempt has to be made for codification.
Codification gives unified effect and gives it force of law.
Course work:
Take away paper
Customary Law- Lecture 14 August
Conflicts of law
The courts are very often called upon to choose which law to apply and since customary law operates alongside other laws there are many occasions when conflict of law applies. Conflict of laws is generated because of the status of customary law vis-a-vis other laws: Which one is to be applied?
Conflict of laws deals with the way judges attempt to resolve dispute when faced with a situation where they have to decide on the what laws to apply. In other words, when faced with a conflict of laws, the courts have to make a choice of which laws to apply.
The internal conflict of laws in Kenya arise from our colonial heritage. Our legal system is plural in nature, in the sense that various distinct bodies of law apply.
And very often they apply concurrently. And when they apply concurrently the parties themselves and the courts have to decided which laws to apply.
There are different levels of conflict. There could be conflicts between the statute themselves, i.e. one statute conflicting with another, and especially between general statutes and specific statutes. Where such conflicts arise, the latest in time criteria is used.
It may also arise between African customary law and English common law, particularly where certain matters are not covered by statutes.
There may also be a conflict between different African customary laws.
When does customary law apply? Section 3 of the Judicature Act is the law governing conflict of law and choice of laws in Kenya. But the provision is vague when it comes to guiding.
Section 3(1) lists the laws in the order of superiority:
Constitution
Statutes
Common law and equity
Section 3(2): customary law shall guide the court so long as it is not inconsistent with the written law or repugnant to justice and morality.

It is not clear what “guided” means. No court decisions seems to have defined
“guided”.
It is also not clear if customary law should be applied in all cases where one or two of the parties are subject to it.
It is also not clear if he courts should consider and bear in bear in mind African customary law when choosing which law to apply to a particular dispute.
Factors which would determine the choice of law:
1. Ethnic origin.
The basic principle is that African customary law is the basic law of Africans.
This was particularly so during colonialism, when African customary law applied to people of African origin only. The definition of Africans during colonialism excluded Ethiopians, Somalis, Comorians, Malagasies who are
Baluchis (at the cost). In 1956 this definition was changed, and the modern definition is General Interpretation and General Provisions Act which provides that African does not include any person who on his own motion proves that he is partly of non-African descent and that he is not living among members of any
African tribe or community in accordance with the community’s mode of life.
2. Religion
Many rules of African customary law developed from religious customs and beliefs. This would mean that a person who practices African religion would be subject to African customary law. With respect to Christianity, conversion to
Christianity during colonialism was often taken to mean a change in the family law system, especially in matters of marriage. See Cole v Cole. The fact that you are a Christian would be irrelevant.
With respect to Islam, Islam has mingled with the African customary law in some places in Kenya, particularly in the northeast province and at the coast.
The African communities in these areas have not totally adopted Islam. They are subject to both Islamic law and their own customary laws. In these communities in resolving disputes of a personal nature the courts tend to apply Islamic law over African customary law. And has something to do with the fact that Islamic law is regarded as written law and therefore superior.
3. Choice of remedy
One can opt for either African customary law remedy or statutory law remedy where this is applicable or possible. For example, in case of defilement you can seek damages under African law or statutory punishment. In the case of Mwaura son Kamau of v Gatoto son of Mwangi (196), the father sought compensation in court under the Fatal Accidents Ordinance for damages over the death of his son. But he had already claimed in a local African court and was awarded compensation of 106 sheep and 10 lambs. The court ruled that the court case was incompetent because the plaintiff had already sought a remedy in the African court . See also Nyokabu v Public Trustee (1965) EA 530.
4. Limitation of actions

African customary law does not have limitation period. There is limitation in statutory law. We should note that the courts have generally discouraged customary law claims where time has elapsed mainly on repugnancy grounds.
See the case of Chaemba v Khwatenge (1953) vol 1 of the Court of Review, page 3.
5. Nature of the claim, relationship or transaction
Where parties are Africans, that will be prima facie evidence that the claim etc is governed by African customary law, especially if the subject is not governed by statute. Where the parties are non-Africans there is a presumption that the same is subject to other laws, other than customary law. In most bilateral relations parties can only opt for one law. For example in the case of marriage parties can choose between customary law and statutes.
The future of African customary law
The future of African customary law needs to be secured and developed on sound lines if African customary law is to be preserved. The first step that needs to be taken is ascertainment and authoritative restatement of different customary laws. But the statement faces a number of hurdles or serious problems: there is lack of rules for dealing with different situations. The focus on much of
African customary law is compensation and reconciliation (not much alternative to those two). deciding which norms are legal or social norm, religious or morals. differences between the laws of the different ethnic groups. It is difficult to achieve uniformity in restatement and ascertainment. urban areas tend to present a different problem because new rules have evolved where customary law does not provide rules. Because you get a mixture of tribes, and new rules have to evolve to address that situation.
After ascertainment African customary law should be unified. This could be fairly possible since most African customary law display great similarity.
Object of unification should be the creation of one central or general system of law applicable to everyone.