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HISTORICAL DEVELOPMENT OF FAMILY LAW IN KENYA; ARTICLES (Nancy Baraza:…
HISTORICAL DEVELOPMENT OF FAMILY LAW IN KENYA; ARTICLES
Kang'ara Sylvia: "Why Take Private Law Seriously in Africa
Why customary law still persists?
it is familiar 2. it is less costly (no bureaucracy) 3. affords individuals immediate benefits formal law fails to compute or value 4. assures certain markets for individuals locked out of formally constituted industries 5. provides low-cost credit facilities to a majority lacking access to formal banking services
Criticisms of customary law
hinders economic development - tragedy of the commons 2. common ownership prevents access to credit and investment in land since banks want to lend to individuals 3. deteremining ownership absent title costly and difficult 4. individuals moving to urban centres cannot sever links with their ancestral lands - cannot liquidate interests
Nancy Baraza: Family Law Reforms in Kenya
Background
first attempt at reforming family law - 5 years after independence. two commissions - marriage and divorce & law of succession.both failed - gave women too much power, assault on local customs. 1993 AG, task force - lawss relating to women in Kenya, submitted report in 1999 -
Matrimonial Property Law
and
Domestic Violence Law
Imperatives For Reforms
Law Reform - law needs to be reviewed regularly to keep in conformity with real life as expressed by ever changing social, economic and cultural trends - patriarchy (hinderance)
Inequality - women hindered
Historical Legacy of the Colonial Rule in Kenya
History of Family Law in Kenya
Pre-Colonial Period
Ethnic communities had their own traditions, customs and customary laws regulating the institutions of the family and marriage providing for procedures and institutions regulating the conclusion of marriages and their subsistence including the resolution of disputes and dissolution.
Colonial Period
East African Order in Council of 1897
,
East African Order in Council of 1902
Current State of the Law in Kenya
Marriage and Divorce -
African customary laws i. Hindu Marriage and Divorce Act (cap. 157) ii. Mohammedan Marriage and Divorce Act (cap. 156) iii. Marriage Act (cap. 150) iv. African Christian Marriage and Divorce Act (cap. 151)
Kang'ara Sylvia: 'Beyond Bed and Bread: Making the African State through Marriage Law ReformConstitutive and Transformative Influences of AngloAmerican Legal Thought'
Kiage Patrick: Family Law in Kenya - History of Family Law in Kenya
Post 2010 CoK
Article 45, Article 53
,
Marriage Act 2014
- refer to OneNote
Effects of English Common Law in Kenya
Wife's right to pledge her husband's Credit -
Patterson v Nanyuki General Store
, Presumption of Advancement -
Mutiso v Mutiso
, Presumption of Marriage -
Wanjiku Yawe
Conversion of Marriage
one way street.
Ayoob v Ayoob
When can a marriage be held to be converted?
Change of faith -
AG of Ceylon v Reid
, Statute -
Section 8 MA
, By subsequent ceremony, Change of domicile
Conflict between English Laws and African Traditional Culture
refer to OneNote