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LESSON TWO SOURCES OF KENYA LAWS Objectives The student should be in a position to; Explain the meaning of the phrase ‘sources of law’ and to list formal sources of law in Kenya. Define and understand the nature of a constitution and appreciate the supreme position enjoyed by The Kenyan of the constitution in the hierarchy of laws of Kenya. Identify other written sources of law i.e. Statutes of parliament, both British and Kenyan, the procedure of their passing into law and their significance. Explain the meaning of, characteristics and advantages and disadvantages of delegated legislation. Understand the nature of judicial precedents and its contents, types and how far they are binding. identify unwritten sources of law i.e common law, doctrines of equity and African customary law. Trace the origin and nature of common law and equity, the role played by equity as a remedy to the weaknesses of the common law and to what extent both are applicable in Kenya as a source of law. Explain the extent of application or the qualifications of African Customary law as a source of law. Explain religion as a source of law in Kenya with special reference to Islam. Explain the above sources of law with help of decided cases and relevant statutes. INTRODUCTION. The phrase ‘source of Law’ is used by different conceptions by philosophers and legal scholars. Some of the meanings attributed to the expression ‘Source of Law’ include: -The social forces which direct law i.e. the sociological factors which lead to formation of particular rules or regulations of law within a given jurisdiction e.g. Culture, Morality, Religion, Science and technology, Economic or political environment e.t.c. -The Law making entity or Institutions within a given society e.g. the parliament. -Territorial or Geographical origin of the law of a given society like Kenya e.g. much of Kenyan law originates from British law. Enforcement of Kenyan law is also undoubtedly territorial i.e to Kenyans and to offences against Kenyans. We shall however concern ourselves more with formal sources of law in Kenya. Harvey describes sources of law as “Defined repositories of authoritative rules to which the law applies, the ordinary citizen, practicing advocates, executive officers of Government and more importantly, the judges turn to for guidance on applicable norms. The formal sources or law in Kenya are set out in Section 3 of the Judicature Act Cap. 8 Laws of Kenya, which says ‘ The jurisdiction of the High Court the Court of Appeal and all Subordinate Courts shall be exercised in conformity with: a). The Constitution.
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b). Subject thereto; all other written laws, including the Acts of parliament of the United Kingdom cited in part I of the schedule to this Act, and modified in accordance with Part II of that schedule.
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