The period prior to 1st July 1981, when the Law of Succession Act came into force, was characterized by a plural application of succession laws in Kenya. Each socio-cultural group had its own body of succession law. This scenario obtained because of historical reasons. There were four legislations in force governing the law of succession in Kenya together with customary law. These were: African Wills Act, Hindu Succession Act, Indian Succession Act, Mohammedan Marriage and divorce Act. When the 1Law of Succession Act Cap. 160 were enacted as Act No 14 of 1972. It was intended to merge and consolidate all the above legislations into uniform law of succession applicable to all the section of the Kenyan population. However, due to intense agitation by the Muslim community between 1981 when the Act came into force till 1990 the Act was amended by statute law (miscellaneous amendment) Act No 2 of 1990 which misapplied the law of Succession Act (Cap. 160) to persons who at the time of their death were Muslims. Instead, Islamic law as contained in the Koran would govern the estate of such persons. The law of succession came about as a result of report compiled by a commission appointed by the late President J. Kenyatta on 17Th March 1967 to enquire into the law of succession. The Law applying to Africans(Pre-colonial period) 2The 1897 Order-in-Council provided under article 52 that African customary law was to apply to Africans as long as it was not repugnant to justice or morality. Matters of succession were therefore to be governed by African customary law. The above legislation did not, however, provide for the law applicable to the so called 'westernized' Africans who had converted to Christianity, got western way of life, seeking to divorce themselves from the operation of African
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This article argues that the observance of Islamic inheritance law (IIL) by Muslims in Kenya while the rest of the citizens employ a universal inheritance law is legitimate. It is within the Muslims’ right to equality and freedom from discrimination both under the now-repealed 1963 independence Constitution and the present Constitution of Kenya 2010. Through analysis of previous works, cases (local and foreign), statutes, international human rights instruments, international consensus documents, other international agreements, in-depth interviews and focus group discussions, the article justifies the application of IIL in the country. It also conducts a thematic reading of the Qur’an, the Muslim Holy Book and the primary source of Islamic law, to demonstrate that IIL is a matter of exceptional importance to Muslims and therefore deserves accommodation in the Kenyan legal system under the right to equality and freedom from discrimination. The article, therefore, allays fears and misc.
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Zbornik Pravnog fakulteta u Zagrebu
Intestacy law is derived from the traditional values, but it can be also under the influences of societies across the world. As a field of private law, the law of intestate succession can, in the long run, resist the non-voluntary, i.e., imposed reception of such rules of and forced by a coloniser. Compared to the flexible regulations, e.g., of the law of obligations, which are therefore more capable of legal transplant, intestate succession is based on deeply enrooted customs of a nation. Thus, these rules can rigidly persist under the pressure of colonisation. Kenya and Australia, two countries with significant differences in their cultural and legal traditions, were, in a diverse way, colonised by England. The article analyses the intestacy laws in these three countries, with the emphasis on Kenya. It especially discusses the reasons for pushing for strong intestacy laws to protect the widow in Kenyan Laws compared with the Australian and English Laws.
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By Kiboyye Okoth-Yogo Working Paper Series, IJED Institute, 2015 What does the expression “law” mean to a typical Kenyan? How does the expression “law” relate to the Kenyan legal system? These are the two questions this paper seeks to answer. The paper is also sentient of the understanding that law is as old as human society. The need for law has been crucial as communal glue. Both the democratic and authoritarian regimes claim their legitimacy from certain legal authority. Whether due to fear of metaphysical abyss, absurdities of self-help, need for conserving socio-economic goods, or keeping in place a government of effective mechanisms, among other things, law is extant. No wonder, in spite of the subjugationist foundations of the Kenya’s legal system, law having been established as tool for pacifying the Kenyan communities into accepting the derogatory colonial edifice, independence could only be a promise to progressively engender changes. The idea of dissipating the basic colonial legal foundations, that integral part of the colonialism, was never even considered. It had assumed a significant place in the carved up Kenyan nation-state society that could not just be fancied off. Another way of looking at law is through its seamless-chaos. This is crystallized both by its seemingly orderly instrumentation and erratic interactions between different cultural elements, often drawing from the deepest ends of every discipline. Occasionally one catches glimpses of oscillation between its divergent regional, ideological and cultural dimensions-North-South divide, social and economic eccentricities, communitarian ethos versus unmitigated free enterprise among others. However such visualizations are more of flashes than clear trajectories. About one hundred and thirty years ago Kenya neither existed as a nation nor state. In its place were different national configurations exemplified in different sizes and customs characterized by unique norm structures, processes and socio-legal systems. Custom as used here refer to the conventional pattern of behavior that exist within a particular socio-political setting. Customs in these nations, what the Luo call piny, headed by a ruoth, or the Nandi Pororiet or the Wanga Kingdom, among others, always acquired the force of law as they became the undoubted rule by which a variety of rights, entitlements, and responsibilities were regulated between members of a polity. Lord Denning in his enunciation of the English meaning of customary law asserted in R. v Secretary of State for Foreign and Commonwealth Affairs that “these customary laws are not written down. They are handed down by tradition from one generation to another. This is similar to the meaning of Suba, Luo, Kikuyu or any other African customary law. Such customs “are well established and have the force of law within the community”. However, like any other African colonial enterprise, this changed, especially after the Berlin conference on the partition of Africa by European powers, which ended in 1885. By 1920, Kenya had assumed its present status. It was to remain under British rule until 1963. Within the short colonial period, lasting less than one hundred years, Kenya had become a flash point for legal experimentation and chaos. A new legal system, largely denigrating the traditional set up was established. What has remained of the old legal systems and residually infused within the Kenyan legal system is collectively referred to as the African Customary Laws applied to matters such as marriage, divorce, traditional authority among other tangential issues. Law is as old as human society. The need for law has been crucial as a communal glue. Both the democratic and authoritarian regimes claim their legitimacy from some legal authority. Whether due to fear of metaphysical abyss, absurdities of self-help, need for conserving socio-economic goods, or keeping in place a government of effective mechanisms, among other things, law is extant. No wonder, in spite of the subjugationist foundations of the Kenya’s legal system, law having been established as tool for pacifying the Kenyan communities into accepting the derogatory colonial edifice, independence could only be a promise to progressively engender changes. The idea of dissipating the basic colonial legal foundations, that integral part of the colonialism, was never even considered. It had assumed a significant place in the carved up Kenyan nation-state society that could not just be fancied off. Another way of looking at law is through its seamless-chaos. This is crystallized both by its seemingly orderly instrumentation and erratic interactions between different cultural elements, often drawing from the deepest ends of every discipline. Occasionally one catches glimpses of oscillation between its divergent regional, ideological and cultural dimensions-North-South divide, social and economic eccentricities, communitarian ethos versus unmitigated free enterprise among others. However such visualizations are more of flashes than clear trajectories. About one hundred and thirty years ago Kenya neither existed as a nation nor state. In its place were different national configurations exemplified in different sizes and customs characterized by unique norm structures, processes and socio-legal systems. Custom as used here refer to the conventional pattern of behavior that exist within a particular socio-political setting. Customs in these nations, what the Luo call piny, headed by a ruoth, or the Nandi Pororiet or the Wanga Kingdom, among others, always acquired the force of law as they became the undoubted rule by which a variety of rights, entitlements, and responsibilities were regulated between members of a polity. Lord Denning in his enunciation of the English meaning of customary law asserted in R. v Secretary of State for Foreign and Commonwealth Affairs that “these customary laws are not written down. They are handed down by tradition from one generation to another. This is similar to the meaning of Suba, Luo, Kikuyu or any other African customary law. Such customs “are well established and have the force of law within the community”. However, like any other African colonial enterprise, this changed, especially after the Berlin conference on the partition of Africa by European powers, which ended in 1885. By 1920, Kenya had assumed its present status. It was to remain under British rule until 1963. Within the short colonial period, lasting less than one hundred years, Kenya had become a flash point for legal experimentation and chaos. A new legal system, largely denigrating the traditional set up was established. What has remained of the old legal systems and residually infused within the Kenyan legal system is collectively referred to as the African Customary Laws applied to matters such as marriage, divorce, traditional authority among other tangential issues. ________________________________
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International Journal of the Humanities
