Sources of Law and Role of Government in Law-Making in Kenya

Sources of law
1.The Constitution
One of the most important sources of law in Kenya, if not the most important Many people refer to
the constitution as the source of all law. An official document that contains the rules, functions,
and roles of a constitution, is called a constitution. Government organizations and state bodies are
expected to follow these guidelines when dealing with the public. It is the first document referred
to when a law needs to be cited. As a matter of fact, it is the only document used in the event of a
legal crisis. As a result, it is vital that citizens understand its contents (Kwach, 2018).
2. Common law
These are laws that have been enacted by a court of law. When a judge examines a certain law and
draws specific conclusions about it, he or she creates a precedent. According to the legal system,
these types of laws can be divided into four distinct categories. Those are the precedents that are
original, declaratory, overruling, and differentiating.
3. Customary Law
These are laws that have been enacted by a court of law. When a judge examines a certain law and
Draws specific conclusions about it, he or she creates a precedent. According to the legal system,
these types of laws can be divided into four distinct categories. Those are the precedents that are
original, Declaratory, overruling, and differentiating. Norms and practices/traditions that are usually
unwritten are referred to by this term. As a result, they are now considered law. Even though they
may have existed before the colonial era, they've undergone a number of significant transformations
over time without necessarily eroding over time depending on the community, customary law is
localized and very diverse. But there are some principles that are universally agreed upon (Kwach,
2018).
4. Acts of Parliament
In Kenyan law, the Foreign Tribunal Evidence Act of 1856 is referred to here. In addition, there
Is a copy of the 1851 evidence and the 1857 law of ascertainment when combined with the
International law, it's a vital source of legal guidance.
5. Statutory Law
It is used to define written laws, usually enacted by a legislative body. Statutory laws vary from
regulatory or administrative laws that are passed by executive agencies, and common law, or the
law created by prior court decisions. It must be consistent with the constitution. It is the most
important source of law.
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Role of government in law-making
Legislature
According to the Constitution of Kenya (2010), the administrative authority of the Republic is
gotten from the individuals and at the national level is conferred in and practiced by Parliament.
Parliament shows the mixed change of the country and speaks to the desire of the individuals.
Parliament considers and passes revisions to this constitution and adjusts province limits as
accommodated the constitution. The parliament makes its laws by tailing the jobs expressed
previously. Kenya has a bicameral parliament consisting of the National Assembly and the Senate
at the regional level.
Judiciary
The Judiciary of Kenya is the system of courts that interprets and applies the law in Kenya. After
the promulgation of the constitution of Kenya in 2010, the general public, through parliament,
sought to reform the judiciary. Parliament passed the Magistrates and Judges Vetting Act of 2011.
A major part of reforming the judiciary was the vetting of Magistrates and Judges in an attempt to
weed out unsuitable ones. The Judicature Act has also been amended to raise the minimum
number of Magistrates and Judges allowing more judicial officers to be hired. The understanding
of law means law- creation as it is these interpretations which genuinely describe the laws
(Oketch, 2009).
Senate
a) To protect the interests of the counties and their governments.
b) The Senate determines the allocation of national revenue among counties, as provided in
Article 217, and exercises oversight over national revenue allocated to the county
governments.
c) Considering and determining any resolution to impeach the President and Deputy President
as per the provisions of Article 145 and 150(2) of the Constitution respectively (The Kenya
Law Reform Commission Act, 2021).
Parliament
It represents the electorate, making laws, authorizing government to spend public money,
scrutinizing activities of government ministries, departments and agencies, and is a forum for
debate on national issues.
a)It is possible for parliament to amend this constitution, as well as change county boundaries,
as set out in this constitution.
b)Parliament represents the people's will and exercise their sovereignty
c)Only the Kenyan Parliament has the authority to enact laws in Kenya (The Constitution of
Kenya, 2021).
Executive
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The executive consists of the president, deputy president and the cabinet. There’s an implication
that official heads, such as the political Executive who run government administration divisions,
detail the systems and deal with the legislative's laws and arrangements. (Ghai, n.d.).
Application of Statutory and common law in Justice Courts
Statutory Law
Statutory law is law that’s written by a legislative body. It’s law that a government deliberately
creates through elected legislators and an official legislative process. It’s up to the judiciary to
interpret and enforce statutory law, but the judiciary can’t create statutory law .Various
government agencies in a country can pass statutory laws. The federal and state governments
enact laws, while local municipalities enact ordinances, which all have the force of law.
Existing laws are formalized and updated to meet the needs of the citizens. (Ethics vs Morals,
2021).
Application of Statutory Law
As a matter of national law, a law must be made and enacted by a complete body in order to be
valid. Instead of administrative or regulatory legislation passed by real associations and
surprisingly well-founded laws or laws chosen under the scrutiny of court decisions, statutory
law must be interpreted and approved by a legal executive.
Common Law
It is created over time by judiciary. It hasn’t been approved by a governing body. It is instead
the judiciary that determines what it seems to be sound legal principles on a case by case basis.
Common law develops when these principles are applied one at a time in real cases. This isn’t a
piece of legislation. Legislative bodies create statutory law in one act. Not in the same way as
common law. As a result, there is no such thing as a statutory law.
Application of Common Law
According to the definition, it is that part of English law that is characterized, made, and
managed by the old point of reference, which has been put together by the old authority. When
it comes to the nation's important customs, the law courts are subordinate. Reference-based law
isn't entirely responsible for Kenyan law, but at least that part of it that the Judicature Act refers
to as "the substance of the extraordinarily-based law" There is no evidence to support the idea
that the point-of-reference-based law courts' bizarre rules for technique have any effect in
Kenya.
Effectiveness of Kenya’s legal system
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