- After independence the Customary laws of Kenya have been accorded full recognition as a source of Kenya law. Section 3 of the Judicature Act, 1967, provides ‘ The High Court and all subordinate courts shall be guided by African customary law in civil cases in which one or more of the parties is subjected to it or affected by it, so far as 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 with out any delay’ it follows from the wording of the above section that customary law applies only :
- in civil cases,
- it is not repugnant to natural justice and morality,
- it is not inconsistent with any written law of Kenya,
- At least one of the parties affected by it is African.
2 The Civil and criminal jurisdiction of the District Magistrates’ Courts. Refer to page 16.
3 Delegated Legislation.
This is defined as a proclamation, rule, regulation, order, notification, by-law or other instrument made under any Act, or other lawful authority and having legislative effect. This type of legislation is becoming increasingly important as the business of government gets more complicated and expensive.
By virtue of.its legislative authority Parliament may confer or delegate some of its legislative powers to a person or a body, usually a Minister or a local authority. Delegation of power to legislate is normally confined to matters of detail as the Legislature has neither the time nor the technical knowledge to enact laws on every detail.
One of the important advantages of subsidiary (or delegated legislation) legislation is its flexibility in circumstances which demand this flexibility such as import duties, currency control, etc. In such situations it may be essential for a Minister or the relevant authority to act quickly but with same authority as the Legislature. A Ministerial regulation can be easily rescinded by him if it becomes impractical or outdated.
Criticism, however, has been leveled against subsidiary legislation especially in England which has a long tradition of an elected system of government. This criticism is principally on the ground that too much legislative power is placed in the hands of non-elected civil servants. This contention has its merits because there is certainly an undermining effect on an elective system where power to legislate is given too freely on matters of policy, which should remain, as far as possible, within the exclusive jurisdiction of an elected body.