Customary law may be defined as consisting of the unwritten norms and practices of small-scale communities which dates back from pre-colonial times but has undergone transformations due to colonialism and capitalism. It is localized in nature and is diverse as the communities involved, although there is general consensus on certain fundamental principles.1
Kenya is a legally plural state where several different legal and normative systems operate alongside each other. Different cultures, African, Hindus and Muslims, have ways that they are expected by their societies to manifest. They are laws that depict their values and sets out standards of expectations. In Africa, they are referred to as African Customary Laws, to Hindus-Hindu Customary Law and to Muslims-Islamic Customary Laws.
African Customary Law
Kenya was subject to British colonial rule from 1895 until 1963 when she gained political independence. The establishment of British colonial rule in Kenya was accompanied by the superimposition of English law over the indigenous people, who already had their own systems of governance. Under the indirect rule policy the British introduced a racially stratified dual legal system, with one system of law for Africans and another system for non-Africans. Thus Native Tribunals were established and run by ostensible traditional authorities, to apply “native law and custom” (or customary law) to Africans while English-type courts run by British magistrates and judges administered the received English law to govern non-Africans.2It should be noted that African customary law was applied mostly in the area of personal relations, notably family law, land tenure and succession. The establishment of Native Tribunals meant that customary law was to be interpreted and applied by state courts. Other aspects of law, such as, criminal law, contracts and torts were governed by the received law consisting of English Common Law and statute law.
At independence, the overriding goal of the Kenyan government was to promote national unity in the face of ethnic, religious, racial and linguistic plurality. The multiplicity of indigenous systems engendered by customary law was perceived as a hindrance to social and economic development. A uniform legal system was therefore seen as desirable. The government therefore embarked on measures to integrate the dual structure of the legal system. In 1967 the native courts were dismantled and unitary court system was established.3The government also made effort to harmonize the customary laws of the various groups with received law. Two commissions, one on marriage and the other on succession, were appointed in 1967, with mandate of drafting uniform laws of marriage (and divorce) and succession respectively. The Marriage Commission in its 1968 Report annexed a Marriage Bill which was intended to constitute a unified system of marriage law. However, despite various attempts to enact it, the Marriage Bill has never passed.4 The Report of the Commission on the Law of Succession experienced greater success as it culminated in passing of the law of Succession Act, which came into operation in 1981. Other reforms included the introduction of individualized land tenure under the Registered Land Act.5 The result was to extinguish customary rights and interests in land that has been adjudicated and given individual tenure.
- An identification of cultural practices that can be said to have formed the legal system then:
In Kenya, there was an attempt at codifying African customary law soon after independence in order to make it easier for judges to ascertain its content. This attempt did not fully materialize but instead took the form of Restatements of the customary laws of marriage, divorce, and succession which were published in 1968.6Although the Restatements were not intended to be a code of customary law, they have acquired the status of a quasi-code, which judges have tended to treat as authoritative and binding.7 Most judges who apply customary law rely on accounts of customary law that record such law as if it were static and do not take into consideration changes which have taken place in Kenyan society since the Restatements were written in 1968. It has been argued that the courts’ continued reliance upon customary law codes or quasi-codes, buttressed by the doctrine of precedent, has resulted in the classification of customary law, thus stifling opportunities for development of customary law.8
Magistrate’s courts, comprising resident and district magistrate’s courts, are subordinate to the High Court and Court of Appeal. Magistrate’s courts have jurisdiction to hear customary law cases,9 but this jurisdiction is restricted to customary law claims related only to certain matters-majorly marriages and succession issues. Under section 2 of the Magistrate’s Courts Act, a “claim under customary law” is defined to mean a claim concerning any of the following matters under African customary law:
- Land held under customary tenure.
- Marriage, divorce, maintenance or dowry.
- Seduction or pregnancy of an unmarried woman or girl
- Enticement of or adultery with a married woman
- Matters affecting status, and in particular the status of women, widows and children, including guardianship, custody, adoption and legitimacy; and
- Intestate succession and administration of intestate estates, so far as not governed by any written law.
The incorporation of the Law of Succession Act in Section 2(1) 10 authorises the Act as a law. However, in two instances it makes room for application of customary law.11This is the major reason as to why while some courts insisted on the exclusive applicability of the Law of Succession Act, most courts maintained that customary law was generally applicable in succession matters, even where there was no express provision for it in the Act. Under this approach, customary law has been applied to deny women the right to inherit their father’s or husband’s estate, as happened in Mary Gichuru v. Esther Gachuhi,12 and in Karanja v. Githara. 13 In this regard, courts place much reliance on the assertions in Cotran’s Restatements on the content of customary law.
By virtue of section 3 (2) of the Judicature Act,14 customary law was recognized as a system of marriage in Kenya, was as valid as any of the other systems of marriage. Where a marriage was contracted under customary law, it was customary law that was expected to regulate all aspects of the marriage, such as capacity to marry, age of marriage, requisites of marriage, rights and duties in marriage. In Hortensiah Wanjiku Yawe v. Public Trustee, 15 it was held that the common law presumption of marriage (i.e. marriage by long cohabitation and repute) could apply irrespective of the form of marriage. Hence the presumption could apply even in a customary marriage which is potentially polygamous.
In the past the courts’ approach has been to insist that all the requisite formalities for customary marriage must have been fulfilled before making a declaration of marriage. Courts often relied on Cotran’s Restatements of Marriage and Divorce. A good examples is Case v. Ruguru,16 where it was held that no marriage subsisted between the two people as ngurario, a ceremony involving the slaughtering of a ram under the applicable customary law, had not been performed in accordance with custom. The courts’ stringent approach has been detrimental to women in cohabitation relationships as it has meant that such women could not avail themselves of the benefits of marriage, such as the right to inheritance of their husbands’ estates, a share in the matrimonial property or maintenance from their husbands.
- Matrimonial property
Under heading V.7, Wife’s Property, the restatements for all groups dictated that the husband is the manager of the wife’s property except possibly for household utensils. This position is different in different communities, based on what a wife may take. Amongst the Kikuyu, Kamba, Meru, Kuria, Nandi and Kipsigis, Elgeyo, Marakwet, Tugen and Pokot, whether the property was acquired before or after the marriage, the wife was expected to take all her property but divide that which was acquired through joint effort. In other groups, like Luhya and Kisii, a wife will not take any property obtained after marriage, including her personal effects.17
- Land Tenure
The Registered Land Act 61 was passed in 1963 to govern land that had been converted to individual land tenure from communal tenure. Registration under this Act confers absolute proprietorship of the land which extinguishes all non-registerable interests, including interests under customary law such as rights of occupation, cultivation and use.18This is disadvantageous to certain categories of people, such as women, children and younger males as title to land is not normally registered in their names.
- Some of the African customary laws that can be seen in the modern legal system:
Despite the attempt to harmonize the legal system, the pluralistic base of the legal system remained. At present, the state legal system recognizes the applicability of customary laws to varying degrees, particularly in the areas of personal law, such as marriage, divorce, inheritance and land tenure. Customary law is characterized by dynamism and flexibility, as it develops and takes on different permutations in response to changing social conditions. Some scholars are of the view that custom and customary law is actually an “invention” of colonial governments in collaboration with local leaders.19 The incorporation of African customary law into the Kenyan legal system is possible through section 87 (1) of the Civil Procedure Act which states that,20 a court may summon the assistance of competent assessors in any cause or matter pending before it in which questions may arise as to the laws or customs of any tribe, caste or community and such assessors shall attend and assist accordingly. Assessors differ from witness in that they are independent persons appointed by the court. These assessors are members of the local community who are deemed to be knowledgeable about relevant customary law.
The presumption of marriage which was applied in the polygamous African customary law setting became applicable where the parties had failed to establish evidence proving that they had been married under customary law. The effect of the decision was that the woman applicant was able to claim part of the deceased’s estate in her capacity as the deceased’s wife under customary law. The decision in this case was followed in a number of subsequent cases, such as Esther Wanjiku Njau v. Mary Wahito,21 and is now firmly established as a principle. In Adongo v. Adongo,22 the court applied the presumption of marriage in order to hold that a woman in a cohabitation relationship was married to the deceased and as such was a wife for purposes of the Act, thereby enabling the woman to have a share of the deceased’s estate. The Marriage Bill of 2007 passed in March 2014 caters for all these.
There is some indication of changes in customary norms and practices over time to accommodate new realities. There are therefore examples of changes in customary practices that allow women to inherit land, for instance in Murang’a District in Central Kenya.23 Research also shows a growing acceptance that an unmarried woman may in some cases inherit from her father, particularly where a daughter have been taking care of her father in his old age.24In 1968, the Commission on the Law of Succession recommended that there should be a uniform law of succession. Pursuant to the Commission’s recommendations, a Law of Succession Act25was passed in 1978 which came into operation in 1981. This law sought to unify the different systems of succession and was intended to apply to all people in Kenya irrespective of race or religion. Another goal of the Act was to promote the equal status of women in Kenyan society.
- Land Tenure
In Gathiba v. Gathiba, 26and other subsequent cases, the concept of customary trust was recognized as a matter of judicial notice. Under this concept, a customary trust is imputed in order to protect customary interests of occupation, cultivation and use, notwithstanding the express provisions of the Registered Land Act. This recognition of customary law interests operates to the advantage of women and other categories of people who would otherwise be disenfranchised from the land.
- Some of the cultural practices that cannot be practiced in the modern legal system:
Article 2 (4) clearly provides that any law, including customary law, that is inconsistent with the Constitution is void to the extent of the inconsistency. The Judicature Act Section 3(2), in part, states that African customary law may be applied as long as it is not repugnant to justice and morality or inconsistent with any written laws. This delineates some cultural practices that were formerly applied, from the modern legal system. They are: issues on matrimonial property, succession, and age of marriage.
- Matrimonial property
In Karanja v. Karanja, 27 it was held that the English Married Women’s Property Act, 1882 (MWPA) was applicable to customary marriages. This ruling was advantageous to women as it meant that women married under customary law could apply to court for apportionment and distribution of matrimonial property. This was contrary to the argument by the respondent husband in that case that customary law did not give rise to the imputation of a trust in favour of the wife in respect of property jointly acquired property between the husband and wife.
There is a growing body of jurisprudence which espouses the view that customary law should not apply where it offends the principles enshrined in international human rights instruments, such as the Additional Protocol to the African Charter on Human and Peoples Rights. For instance, in Mbinga v. Mbinga (2006),28 Lady Justice Khaminwa appealed to the principles of non-discrimination enshrined in international treaties to which Kenya is a signatory, namely the Universal Declaration of Human Rights (UDHR) and Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), to override a customary law that allowed discrimination against married daughters in inheritance matters. In a bold articulation of gender equality, the judge noted that the custom of disinheriting daughters (female children) went against the current jurisprudence in international law which was making a concerted effort to ensure that there was no discrimination on the grounds of gender.
- Age of marriage
Section 2, Children Act, 2001, 29 defines early marriage as marriage or cohabitation with a child. Under the same section a ‘child’ is defined as any human being under the age of 18 years. This effectively prohibits the marriage of persons under the age of 18 even where such a person is contracting a marriage under custom. There is thus a conflict between the provisions of the Children Act and the applicable customary rule and practice. One way of dealing with the above conflict would be to appeal to the provisions of section 3 (2) of the Judicature Act which provides that customary law is not applicable where it is inconsistent with written law. Hence customary law (unwritten law) should be held to be subject to the Children Act (written law).
Islamic Customary Law
Islamic law (Shariah) is the religious law governing the members of the Islamic faith.30 It’s derived from the religious instructions of Islam, particularly from the Quran and the Hadith. The term Shariah is an Arabic word, which means a body of moral and religious law derived from religious prophecy, as opposed to human legislation. Since the early Islamic states of the 8th and 9th centuries, Sharia always existed alongside other normative systems.31Most Muslim-majority countries adopt various aspects of Sharia.
- How the cultural practices can be said to have formed the legal system then:
Islamic or Muslim law is a very limited source of law in Kenya. The Native Court Regulations of 1887, at Articles 57 and 59, applied Islamic law on matters relating to personal status. These regulations were re-enacted in Ordinance number 13 of 1907, which established the Kadhi’s courts and vested them with full jurisdiction over matters relating to personal status, marriage, inheritance and divorce.
- Marriage (Nikah) and Divorce (Twalak)
In Islam, a marriage was a contract, otherwise known as a nikah, between a man and woman who freely enter into it. Divorces were possible but Muslims were not to go lightly about untying the knot, as the Prophet (PBUH) was believed to have said that the most hated of permissible things to Allah is divorce (Hadith reported by Abu Dawud,)32. As demonstrated in Quran, Chapter- Nisa “Women” (4:35). Since the 1970s effort to enact a uniform marriage law turned unsuccessful, marriage law continued to be governed by several regimes, one being the Muslim system that was based on the principles stated in the Quran. The Mohammedan Marriage and Divorce Registration Act of 1906, in Section 9 provided that the parties to a marriage or divorce recognized by Mohammedan law, or if the man and woman or both are minors their respective lawful guardians, shall register such marriage or divorce with an Assistant Registrar within 7 (seven) days from the celebration of such marriage or the pronouncement of such divorce, as the case may be. These are supposed to be in accordance with the tribe or sect of the parties involved.
- Inheritance (Miradh)
The law of succession was of great importance among the Muslims. It had a religious character and indeed “…the laws of inheritance appear as a vital aspect of the religion of Islam” (Coulson: 1971). The Quran enjoined the faithful to learn the laws of inheritance and teach them to the people since they were half of the useful work of the useful knowledge. The estate of the deceased Muslim was to comprise of the property he owned-movable or immovable. There was also no distinction between personal and family property hence the criteria for inheriting property in Islam included blood relationship by marriage and that of a slave and a master. (Pearl: 1973)
The Quran recognized both testate and intestate succession. Only a third of the deceased’s estate could be dealt with by will. The remaining two-thirds was to be distributed under intestacy rules laid down in the Quran which fixes shares allocated to persons recognized as heirs, for example, widow or widower, father, mother and children. Grandparents would inherit when the heirs in the nuclear family, could not, inherit due to special reasons. Generally, a male under the Quran takes double share of the female. The effect of these rules of the Quran were that, while a person could dispose of his property as he willed in his/her lifetime, he could not by a will reduce or enlarge the shares of those who were entitled by law to inherit.32 When a man died leaving a wife and no children, the wife inherited one-quarter of the net estate and if there were children, she took one-eighth. If it was a polygamous family, the wives shared the quarter or eighth depending on whether there were children. The disproportionate share amongst sons and daughters was founded on Sura 4 Verse 11 of the Holy Quran which states that:
Allah ordains concerning your children that the male shall have a share equivalent to that of two females. If the children are females numbering two or more, their proportion is two-thirds of the inheritance.
Regarding testate succession, the Quran ordained that testamentary power was exercisable by any Muslim who was sane and rational and above the age 15 years. No particular form was provided for making such a will. It needed not be written or signed and if it was signed it needed not be attested. To bequeath more than a third of one’s estate, the testator needed the consent of the heirs and if such consent was refused, his bequest was only to extend to a third of his testate. Such third could only be bequeathed to outsiders and heirs could not inherit this portion. In succession, a woman had the right to dispose of her property without interference from her husband. If he interfered, the wife was entitled to a decree of dissolution of the marriage.
- The cultural practices that can be seen in the modern legal system:
The effecting of the 1897 Native Courts Regulation Ordinance, Article 57, that provided for the law of succession of Muslims was contained in the Quran clarified the independence of Islamic Customary Law. These regulations were re-enacted in the 1907 Native Courts Ordinance, which established the Liwali courts. These had jurisdiction to hear and determine matters arising out of Islamic law, including succession. This remained the position until independence when the government reaffirmed the position to Muslims as part of a constitutional bargain to counter their break away from the rest of Kenya. It was achieved in Section 66 of the constitution that established the Kadhi’s courts, mandated to decide matters arising out of Islamic law; personal law. Even with the promulgation of the 2010 constitution, the provision of Article 169 and 170 that addresses the Kadhis Court is a clear indication that the Islamic Customary laws, since they were originated from the Quran, do not change hence they are adapted into the modern legal system.
- Cultural practices that are inconsistent to justice and morality:
The issue abolished was punishment for wrongs that led to the loss of lives or grievous bodily harm such as: chopping off hands, strokes of the cane (being whipped), stoning to death or decapitation of the head.
Hindu Customary Law
The word “Hindu” used to be an ethnic label and not a religious one. First the Persians and then the Greeks used the expression “Hindu” to refer to the ethnic group of people or Indians and, in the thirteenth century, the word “Hindu” was more widely used to distinguish them from the Islamic kingdoms within India. Later on, the expression “Hinduism” was used during the British Rule in the nineteenth century to refer to the Hindu religious culture group as distinct from Christianity and Islam. Ever since, “Hinduism” has largely developed as a term that embraces the varied beliefs, practices and religious traditions among the Hindus that have common historical formations including philosophical basis. The Kenyan Legal system was mostly interested in the issues relating to personal status-succession, marriage and divorce.
- How the cultural practices can be said to have formed the legal system then:
The Hindu Law of Succession, particularly, Bengal School, provided that all property which a Hindu who dies has in possession passes to his/her heir unless he/she has made a valid will,33and ownership of a joint family property is rarely distributed. Under the Mitakshara sect, the widow was entitled to maintenance from her husband’s estate which passed by survivorship. Regarding the other property of the husband, the widow had no interest and she could not inherit it as long as there is a male child or a male relative surviving. In cases where no such issue survives, she took a limited estate in the whole intestate estate to the exclusion of any married daughters.
A widow could not inherit the property of any person other than her husband. No right would, as a consequence of this, accrue go her as a widow to succeed a person to whom her husband would have been an heir had he lived.34This provision prescribed by the Hindu law could not be altered, neither by a private arrangement, nor by a will.35 On property descending to a male heir, he became a fresh stock of descent and on his death, the property passed to his heir and not the heir of the previous owner. To a female, however, she did not become a fresh stock of descent and on her death, the person who would have been heir to the last full owner took the property and if such a person is a male, he became a new stock of descent.36
Among certain schools of Hindu Law such as, Bengal, Benares and Madras, women inherited only by virtue of express texts but in Madras, certain female heir could inherit in default of all male heirs. Significantly, the Crown was entitled to succeed by escheat in preference to women not expressly named in a text.37Rules of exclusion from inheritance among Hindus excluded an unchaste widow from succeeding to the property of her husband where such property had not vested in her before his death.38According to the Bengal School, such exclusion extended to any female heir by virtue of her unchastity antecedent into the vesting. Hindus could make wills by virtue of Hindus Act, 1870 of India, whose provisions were gender-neutral. For a written will to be valid, it had to bear a mark of execution by the testator and had to be made before two or more competent witnesses. Under this Act, widows may not be deprived of their rights to maintenance as they had a right to dispose of their right of maintenance by will.
- Marriage and divorce
A marriage will be valid only if both the parties to the marriage are Hindus, that is, if one of the parties to the marriage is a Christian or a Muslim then there will not be a valid marriage. It further provides that for a marriage to be solemnized, the following conditions must be fulfilled:
- Neither party should be having a spouse living at the time of marriage
- At the time of marriage, neither party:
- Is incapable of giving a valid consent to it in consequences of unsoundness of mind
- Though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and procreation of children
- Has been subject to recurrent attacks of insanity or epilepsy.
- The bridegroom has completed the age of 21 years and the bride the age of 18 years at the time of marriage.
- The parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two.
- The parties are not sapindas (one is a lineal ascendant of the other) of each other, unless the custom or usage governing each of them permits a marriage between the two.39
On divorce, although formerly, family was considered sacred and divorce taboo, changes in socio-economic issues led to its inculcation into the culture. All Hindus and Buddhists, Sikhs and Jains could therefore seek marriage and divorce. The nine strictive grounds for divorce are: marital infidelity, infliction of cruelty, long period of desertion, mental or physical illness of a spouse, a spouse suffers from virulent and incurable form of leprosy, spouse suffering from venereal disease in a communicable form, cease of being a Hindu and renouncing the world and entering into a religious order. 40
- The cultural practices that can be seen in the modern legal system:
The Hindu Succession Act and the Hindu Marriage and Divorce Act are current sources of law recommended in the Kenyan legal system, for application. There is no modification that has been made to them and they are applied as they were formerly applied.41
Abdulla, Y.A., The Holy Quran, Foundation Books, 1965.
Coulson, N.J., Succession in the Muslim Family, Oxford University Press 1957.
Cotran, E., Restatement of African Law, Volumes 1 and 2, Sweet and Maxwell, 1969.
Cotran, E., Casebook on Kenya Customary Law, Professional BooksLtd. And Nairobi
University Press 1987.
Hindu Marriage, Divorce and Succession Ordinance, 1946 Cap.43.
Maina, W.M., Marriage and Succession: A Conflict Precipitated by the Inclusion of Section 3(5) Into the Law of Succession Act Cap. 160. Laws of Kenya. LLB. Dissertation University of Nairobi, 1992.
Pearl, D., Principles of Mohammedan Law, Cambridge University Press, 1973.
Abdul Malik LLB 256/17 is a student at Moi University Law School E-Mail: email@example.com