The legal system of Kenya
A common-law system transformed by the 2010 constitution, which created 47 devolved counties, a Supreme Court, and one of the strongest bills of rights in Africa. Kadhis' courts have constitutional standing for Muslim personal status. Kenyan courts have annulled a presidential election and struck down constitutional amendment attempts, making this an unusually active constitutional jurisdiction.
Legal tradition
Kenya belongs to the mixed (common law, customary law, islamic law) tradition. A common-law system transformed by the 2010 constitution, which created 47 devolved counties, a Supreme Court, and one of the strongest bills of rights in Africa. Kadhis' courts have constitutional standing for Muslim personal status. Kenyan courts have annulled a presidential election and struck down constitutional amendment attempts, making this an unusually active constitutional jurisdiction.
How power is divided
Presidential system with no Prime Minister, a bicameral Parliament of National Assembly and Senate, 47 county governments with their own assemblies and executives, and an independent judiciary supervised by the Judicial Service Commission.
Where law comes from
- Constitution
- Supreme; article 2 voids inconsistent law and directly incorporates treaties.
- Acts of Parliament
- National Assembly and Senate legislation.
- County legislation
- County assemblies legislate on Fourth Schedule functions.
- Common law and equity
- Received English rules as developed by Kenyan courts.
- Customary law
- Applied in civil cases where not repugnant to justice and morality.
- Islamic law
- Applied by Kadhis' courts in Muslim personal status matters.
The legal profession
Fused: an LLB, the Kenya School of Law advocates training programme, and admission by the Chief Justice produce an advocate of the High Court. The Law Society of Kenya is the professional body; Senior Counsel is the senior rank.
Law by topic in Kenya
- Business & CorporateThe Companies Act 2015, modelled on the UK Act of 2006The Companies Act 2015 replaced the 1948-derived Act, importing the UK 2006 structure including codified directors' duties, a single-director private company and abolition of the memorandum's objects clause. Insolvency was separated into the Insolvency Act 2015, which introduced administration and voluntary arrangements.
- Tax LawThe Income Tax Act and VAT Act 2013, with a specialised Tax Appeals TribunalCorporate income tax is 30% for residents, VAT is 16% under the VAT Act 2013, and the Tax Procedures Act 2015 unified assessment, objection and penalty rules across taxes. Digital service tax and the significant economic presence rules extend the base to non-residents.
- Constitutional LawThe 2010 constitution: devolution to 47 counties and a justiciable bill of rightsThe Constitution of 2010 replaced the independence text, creating 47 devolved counties with their own assemblies and revenue share, a Supreme Court, and a bill of rights that binds all state organs and applies horizontally between private parties. It entrenches judicial review of legislation and requires public participation in law-making.
- Criminal LawThe Penal Code with constitutionalised criminal procedure since 2010The Penal Code (Cap 63) remains the principal offence-creating statute, but the 2010 constitution transformed procedure: article 49 fixes arrested persons' rights, article 50 guarantees a fair trial, and the Supreme Court held the mandatory death sentence for murder unconstitutional in Muruatetu (2017).
- Civil ProcedureThe Civil Procedure Act with constitutionalised access to justiceCivil procedure follows the Civil Procedure Act and its Rules, English-derived and reformed in 2010. Article 159 of the constitution requires courts to administer justice without undue regard to procedural technicality and to promote alternative dispute resolution.
- Property & LandThe 2012 land statutes, replacing a fragmented colonial regimeThe Land Act, Land Registration Act and National Land Commission Act of 2012 replaced several colonial-era statutes with a single framework. Land is classified as public, community or private, community land was given statutory form in 2016, and non-citizens may hold land only on leases of up to 99 years.
- Family LawThe Marriage Act 2014, recognising five forms of marriageThe Marriage Act 2014 consolidated marriage law and recognises Christian, civil, customary, Hindu and Islamic marriage, with polygamy available in customary and Islamic forms only. The Matrimonial Property Act 2013 governs division, and the Court of Appeal has held that non-monetary contribution counts.
- Immigration & NationalityThe 2011 Citizenship and Immigration Act, with EAC free movementThe Kenya Citizenship and Immigration Act 2011 governs entry, permits and citizenship, implementing the 2010 constitution's provisions on dual citizenship. East African Community nationals enjoy free movement rights under the Common Market Protocol.
- Employment & LabourThe 2007 labour statutes with a specialised Employment and Labour Relations CourtFive statutes enacted in 2007 govern employment: the Employment Act, Labour Relations Act, Labour Institutions Act, Occupational Safety and Health Act and Work Injury Benefits Act. Disputes go to the Employment and Labour Relations Court, which has the status of the High Court.
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