CHAPTER 2: SOURCES OF LAW

The phrase “sources of law” literally means where rules of law are found. However, the phrase has
been used in a variety of senses e.g. It has been used to describe;
(a) The origins of the rules and principles which constitute the law applicable in a country at a
given time.
(b) The source of force or validity of the various rules or principles applicable as law in a country.
(c) The materials from which rules of law developed.
(d) The factors which influence the development of the rules of law.
Therefore, the phrase can be used to describe the legal, formal, historical and material sources of law.
Sources of law in Kenya
1. The Constitution
2. Legislation/Act of Parliament/Statutes
3. Delegated legislation
4. Statutes of General Application
5. Common law
6. Equity
7. Judicial precedents/Case law/judge – made law
8. Africa Customary law
9. Hindu Law
10. Islamic Law
11. General rules of international law;
12. Any treaty or convention ratified by Kenya e.g. the Rome Statute.
THE CONSTITUTION
This is a body of the basic rules and principles by which a society has resolved to govern/regulate its
affairs. It contains the agreed contents of the political system and the basic structure of government.
Classification of constitutions
(a) Written and Unwritten
(b) Republican and Monarchical
(c) Presidential and Parliamentary
(d) Rigid and Flexible
The Kenyan Constitution is written. It was promulgated on the 27th of August, 2010. It is the
fundamental law of the land and prevails over all other laws. It is the supreme law.
Written constitution
Advantage
(a) The written constitution is very clear and precise. It is free from doubts and ambiguity
(b) It lays emphasis on rule of law.
(c) It properly distributes powers between the national and county governments.
(d) It protects the fundamental rights of the individual. Fundamental rights are very essential for
the liberty of the individuals and rights are part of a written constitution. It will be
unconstitutional to deprive individual of any of these rights.
(e) It protects the interests of minorities.
(f) As a written constitution is clear, the ruler (government) cannot exercise powers arbitrarily.
Disadvantages
(a) It is rigid. It cannot easily cope with the changes taking place in the course of time. With the
passage of time changes take place in the condition of a country. The constitution needs
revision or modification to deal with such changes, a written constitution, being rigid, is not
easily amenable to necessary modification or revision.

Page 1 of 4
(b) When a written constitution fails to cope with the march of time and consequent changes in the
condition of the country, the people, being angry, may revolt against the government.
(c) As it gives more importance to written laws, the importance of public opinion decreases.
(d) In a country with a written constitution, customs, traditions and conventions lose their value.
Unwritten constitution
Merits of Unwritten Constitution:
(a) An unwritten constitution, being flexible, is able to deal with the changed condition.
(b) As an unwritten constitution grows over a long period, it gains in wisdom and maturity
(c) There is not much fear of rebellion or revolution in a country having an unwritten constitution.
(d) In a country with an unwritten constitution, customs, traditions and conventions receive due
importance.
Demerits of Unwritten Constitution:
(a) An unwritten constitution is unclear and ambiguous. It is full of doubts.' result, it also contains
some elements of contradiction. It undermines performance of government.
(b) As it is very easy to bring about changes in a political system with an unwritten constitution,
many undesirable changes take place resulting in a lot of instability.
(c) An unwritten constitution does not clearly express fundamental rights of individuals. They
cannot enjoy their freedoms and they cannot actively take part in the democratic process.
Therefore, an unwritten constitution is not good for democracy.
(d) An unwritten constitution is not good for a federal system, as it does not provide for proper
distribution of powers between the centre and federal units - states or provinces. Because of
this, many disputes occur between the central government and state or provincial governments.
The differences between written and unwritten constitutions, stated above, are more theoretical than
real. Though most of countries have opted for written constitution, written constitutions are not
necessarily superior to unwritten constitutions.
On the contrary, in many countries having written constitution, the performance of government is not
good and people are deprived of their basic rights. The basic rights of individuals in Britain with an
unwritten constitution are as safer as the basic rights of individuals in America with a written
constitution.
The constitutions have also been divided into two other categories, namely rigid constitution and
flexible constitution.
Supremacy of the constitution
The constitution is supreme in that;-
(a) All other laws derive their validity from the Constitution
(b) It proclaims its supremacy. Article 2 of the Constitution provides inter alia (among other things)
“This Constitution is the Constitution of the Republic of Kenya and shall take the force of law
throughout Kenya , if any other law is inconsistent with this Constitution, this Constitution will
prevail and the other law shall to the extent of its inconsistency be void”
(c) It binds all persons and all State organs at both levels of government.
(d) No person may claim or exercise State authority except as authorized under the Constitution.
(e) Its validity/legality is not subject to challenge by or before any court or other State organ.
(f) Any law which is inconsistent with the Constitution is void to the extent of the inconsistency,
and any act or omission in contravention of this Constitution is invalid
(g) The general rules of international law shall form part of the law of Kenya.
(h) Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this
Constitution.

Page 2 of 4
STATUTE LAW (ACT OF PARLIAMENT)
This is law made by parliament directly. The product of parliament’s legislative process is an Act of
Parliament e.g. The companies Act. Statute law is a principal source of law applicable throughout
Kenya. It must be consistent with the Constitution. It is the most important source of law.
The law making process
The legislative power of parliament is exercisable by passing Bills in the National Assembly.
BILLS
A bill is draft law. Bills may be classified as:-
(a) Government and Private members bills
(b) Public and Private bill
Government Bill: This is a Bill introduced by the government to the National Assembly for debate
and enactment to law. They are drafted by the office of the Attorney General.
Private Members Bill: This is a Bill introduced by a member of parliament in his capacity as such
for debate and passage to law e.g. The Hire Purchase Bill, 1968
Public Bill: This is a bill that seeks to introduce or amend a law that is applicable throughout Kenya.
It may be government or private members
Private Bill: This is a Bill that seeks to introduce or amend law applicable in some parts of Kenya or
it regulates a specific group of persons. The bill may be government or private members.
Law making procedure
The house standing orders requires that a bill passes through the following stages before enactment
to law.
1. Publication and circulation of Bill in the Kenya Gazette: This is to inform the public and
M.P’s of the intended law. As a general rule, a bill must be published at least 14 days before
introduction to the National Assembly.
2. 1st Reading: The Bill is read out to members for the 1st time. No debate takes place. This reading
is a mere formality.
3. 2nd Reading: The Bill is read out to members for the 2nd time. This is the debating stage. All
members are given the opportunity to make contributions. Amendments or alterations may be
proposed.
4. Committee / Committal Stage: The bill is committed either to a select committee of members
or to the entire National Assembly as a committee for a critical analysis. At this stage, the bill is
analysed word for word. In the case of a select committee, it makes a report for submission in the
National Assembly
5. Report / Reporting Stage: The chairman of the Select Committee tenders its report before the
National Assembly. If the report is adopted, the bill proceeds to the third reading
6. 3rd Reading: The bill is read out to members for the third time. Generally no debate takes place.
The Bill is voted on by members of the National Assembly and if supported by the required
majority, it proceeds to for presidential assent
7. Presidential assent: All Bills passed by the National Assembly must be presented to the
president for his assent. The president must within 21 days of presentation of the bill signify to
the speaker of the National Assembly his assent or refusal. If the president refused to give his
assent, he must within 14 days thereof deliver to the speaker, a memorandum on the specific
provisions which in his opinion should be reconsidered including his recommendations for
amendment. The National Assembly must reconsider the bill taking into account the president’s
recommendations and must either:
- Approve the recommendations with or without any amendments and re-submit the bill to the
president for assent OR
- Ignore the president’s recommendations and re-pass the Bill in its original state. If the
resolution to repass the Bill as such supported by not less than 65% of all the members of the
Page 3 of 4
 National Assembly excluding the ex-officio members, the president must signify his assent
within 14 days of the resolution.
8. Publication of Law in the Kenya Gazette: A statute or Act of parliament comes into operation
either on the date of publication in the Kenya Gazette or on such other dates as may be signified
by the minister by a notice in the Kenya Gazette. However, Parliament is empowered to make
law with retrospective effects. All statutes enacted by the parliament of Kenya must contain the
words “Enacted by the parliament of Kenya.”
Advantages of Statutes Law
(a) Democratic: This is because parliaments consist of representatives of the people they consult
regularly. Statute Law therefore is a manifestation of the will of the people.
(b) Resolution of legal problems: Statute Law enables society to resolve legal problems as and
when they arise by enacting new statutes or effecting amendments to existing Law.
(c) Dynamic: Statute Law enables society to keep pace with changes in other fields e.g. political,
social or economic. Parliament enacts statutes to create the necessary policies and the
regulatory framework.
(d) Durability: Statute Law consists of general principles applicable at different times in different
circumstances. It has capacity to accommodate changes without requiring amendments.
(e) Consistency / Uniformity: Statute Law applies indiscriminating i.e. it regulates the conduct of
all in the same manner and any exceptions affect all.
(f) Adequate publication compared to other laws: this is because it must be published in the
Kenya Gazette as a bill and as a Law. It also attracts media attention.
(g) It is a superior source of law in that only the Constitution prevails over it.
Disadvantages of Statute Law
(a) Imposition of Law: Statute Law may be imposed on the people by the dominant classes in
society. In such a case, the Law does not reflect the wishes of the citizens nor does it cater for
their interests.
(b) Wishes of M.Ps: Statute Law may at times manifest the wishes and aspirations of M.Ps as
opposed to those of the citizenry.
(c) Formalities: Parliamentary Law making is tied to the Constitution and the National Assembly
standing orders. The Law making process is slow and therefore unresponsive to urgent needs.
(d) Bulk and technical Bills: Since parliament is not made up of experts in all fields, bulky and
technical Bills rarely receive sufficient treatment in the national assembly, their full
implications are not appreciated at the debating stage.

Page 4 of 4