Common law in Kenya

Abstract

The former British colonies adopted legal systems modeled on English Common Law. By that token, the recognition of judge-made law and a commitment to the doctrine of precedent remain key attributes of their respective legal systems. However, the British constitutional arrangement was not transplanted in the same manner as was the common law into commonwealth Africa. Instead, African countries adopted written constitutions and broadened the repertoire of common law across the continent. In constitutional law, they followed the system of judicial review as practiced in the United States. This inspired a change of some of the basic foundations of English common law in Africa. Therefore, there is a burgeoning development of judge-made constitutional jurisprudence. This chapter reviews these developments and what it means for the current status of the common law in Africa, with particular emphasis on Kenya. It traces the origins, changes, and developments that have followed the adoption of the 2010 Constitution in Kenya.