Circumstances under which African customary law may be used as a source of law

Circumstances under which African Customary Law may be applied in court.

  • Customary law is applicable only in civil cases.

The District Magistrate’s Courts Act restricts the civil cases to which African customary law may be applied to claims involving any of the following matters only:

  1. Land held under customary tenure:
  2. Marriage, divorce, maintenance or dowry:
  3. Seduction or pregnancy of an unmarried woman or girl:
  4. Enticement of, or adultery with, a married woman:
  5. Matters affecting status, particularly the status of women, widows and children, including;-  Guardianship, custody, adoption and legitimacy: Intestate succession and administration of intestate estates, so far as it is not governed any written law.

 

  • One of the parties must be subject to it or affected it. If the plaintiff and the defendant belong to the same ethnic group, they may be said to be ‘subject’ to the customs of that ethnic group which could then be applied to settle the dispute. For example, a dispute between Kikuyus relating to any of the matters listed in (b) above cannot be settled under Kamba, Luo or any other customary law except Kikuyu customary law. However, if there is a dispute involving parties from different ethnic groups it may be determined according to the custom of either since one party would be subject to and the other party ‘affected’ the custom.
  • The customary law will only be applied if it is not repugnant to justice and morality.
  • The customary law that will be applied only if it is not inconsistent with any written law.
  • African customary law is not applicable if it is expressly excluded a contract the parties involved or the nature of the transaction in question.
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