Final break from colonial laws long over due

By Pravin Bowry

Kenya: A Law Reform Commission has existed since 1982 but its successor was recently officially launched having been renamed and rejuvenated as the Kenya Law Reform Commission (KLRC) under the Kenya Law Reform Commission Act, 2013.

Significantly and interestingly, despite the picture painted in the Press, KLRC is not one of the 10 Commissions under Chapter 15 of the Constitution and only a brief reference to the old “Law Reform Commission” is made in the Constitution.

In furthering reforms and reviews of national and county laws, the new Commission has a statutory duty to see that all laws conform to the Constitution and are harmonised, simplified, modernised and made cost effective.

KLRC has the responsibility of ensuring the domestication of treaties and other international instruments ratified by the State into the national laws. 

The East African Community are required to be streamlined into the national grid by the Commission.

The Commission undertakes research on all matters pertaining to law reform and advises both the National and County Governments on the same including pre and post-enactment regulatory impact assessment.

The Commission is also required by law to co-ordinate with the Commission for the Implementation of the Constitution and the Attorney General in preparation of Bills to be tabled in Parliament.

It is important to point out that KLRC has the potential to forever change the lives of Kenyans and its workings in years to come may be more significant than the work of ‘Vision 2030’.

Fifty years after Independence there are still sets of mainly English laws which are applicable in the country and the time is now opportune for KLRC to urgently and immediately address its mind to completely and finally Kenyanise all laws and break the shackles of colonial and antiquated laws once and for all.

All the English laws prior to  August 12, 1897 and the English Common Law are still applicable under the Judicature Act as are the doctrines of equity. Section 3 (1) of the Judicature Act is to the effect that the jurisdiction of the High Court, the Court of Appeal and all subordinate courts  be exercised in conformity with—

a. The Constitution;

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, modified in accordance with Part II of that Schedule;

c.  Subject thereto and so far as those written laws do not extend or apply, the substance of the common law, the doctrines of equity and the statutes of general application in force in England on the 12th August, 1897, and the procedure and practice observed in courts of Justice in England at that date;

Further, Section 3(2) of the Judicature Act provides that the High Court, the Court of Appeal and all subordinate courts shall be guided by African customary law in civil cases in which one or more of the parties is subject to it or affected by it, so far as it is applicable and is not repugnant to justice and morality or inconsistent with any written law, and shall decide all such cases according to substantial justice without undue regard to technicalities of procedure and without undue delay.

 The Judicature Act is one piece of legislation which needs to be repealed and replaced forthwith, references to English laws obliterated and the place of customary law in Kenya reviewed and given greater significance.

 In 2003, the Penal Code was amended when in all Criminal matters the doctrines of English law and principles of legal interpretation obtaining in England were made inapplicable in Kenya. However Section 3(3) of the Criminal Procedure Code still retains jurisdiction of the High Court of Justice in England as prevailing in 1930.

On matters dealing with contract and torts i.e. civil wrongs, English law is still applicable, lock stock and barrel. There may well be need to codify these laws in one statute.

Also, the application of English Common Law should now be rendered obsolete and Kenyan Courts should develop their own Kenyan common law and jurisprudence based on African traditional values and aspirations including incorporation of Kenyan Customary laws which hitherto have been underemphasised and relegated to insignificance

Recent examples of breaking with the past are the repeal of the Indian Transfer of Property Act of 1882 by the Land Registration Act and the Married Women’s Property Act of 1870 by the Matrimonial Property Act, 2013 – all very welcome changes.

There are nine other English Acts enacted in England from 1849 to 1885 which still apply in Kenya which should be domesticated if need be though all these laws are only of historical nature.

The exercise of indigenising the law completely will undoubtedly pose problems on matters of substantive and procedural laws but previous experience (such as in the case of succession laws) indicate that Kenyans are capable of developing their own jurisprudence relevant to the present and controlled by the aspirations of modern Kenya.

With now the existence of a Supreme Court, it can confidently be asserted that English or Indian laws do not have any place, and any uncatered for eventualities can be resolved by the four-tier court system.

The Machinery for the long awaited final break in legal matters is now in place and hopefully, legal independence is on the horizon.

Mr Bowry is an Advocate of the High Court of Kenya

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