Traditional Dispute Resolution Mechanisms in the Administration of Justice in Kenya

Abstract

The Constitution of Kenya 2010 recognises customary law and the use of traditional dispute resolution mechanisms (hereinafter ‘TDRMs’), which are informal and culturally-appropriate justice systems in resolving disputes. Whereas several African countries have promoted the use of customary law by establishing customary courts, Kenya retains a system where both customary law and state law are subject to interpretation by state courts. The Kenyan Constitution cements this position by stipulating that TDRMs are to be promoted and encouraged by the Judiciary. This chapter examines how Kenyan courts have treated decisions emanating from TDRMs highlighting attributes of citizenship such as urbanisation and equality. It notes that the constitutional position creates doubts as to the future development of customary law and TDRMs in Kenya owing to the divergent and conflicting approaches taken by the judiciary over the years in interpreting customary law.