“all written laws, and all laws, rules and principles written or unwritten
having the force of law, whether in force or having such force as aforesaid
before, at or after the commencement of this ordinance, in any part of
Kenya.”
Inspite of the resistance to the liberal approach mentioned earlier above, a contrary and more
progressive view was, expressed by Crabbe J.A. in his judgment in the case of Earnest
Kinyanjui Vs Muiru (supra). His Lordship through a lonely voice had this to say:“The customary law is part of the laws of Kenya and under section 59
of the Evidence Act, 1963 the court is bound to take judicial notice of
it, and therefore the person relying on it need not prove it, except, I
think, when the custom relied upon is a peculiar one………
Before concluding this judgment, I should like to express my own
views on the general observations made by my brother Duffus that in
civil claims native law and custom must be proved in a magistrate’s
court or in the High Court. The rule that the customary law must be
proved was stated by the Privy Council in the Ghana case of Angu V.
Attah……….But this rule which was applied only in the ‘British
courts’ originated from the fact that most of the early judges in the
British colonial territories in West Africa were Europeans, who were
un acquainted with the various rules of the customary law. The
courts therefore insisted on the proof of rules of customary law. The
rule was not however always followed, for in deciding questions of
native law and custom, the existence or content of any rule of
customary law was in some cases determined by reference to any book
or manuscript recognized as a legal authority, and the court could
also call to its assistance chiefs or other persons whom the court
considered to have special knowledge of native law and custom. The
rule in itself is fast becoming out of date, and I think it is too late to
extend its application to East Africa. It may be a convenient rule in
the present circumstances in Kenya, but I do not think that sections
59 and 60 (1) (a) and (2) justify a rigid adherence to the rule in Angu
V. Attah………I am satisfied that if it was the intention of the Kenya
Parliament that the customary law should be proved several times
before the courts could take judicial notice of it, it would have said so
in plain language. In my view the fact that Parliament has made
provisions, such as the summoning of assessors and resorting to
appropriate books or documents of reference for the purpose of
ascertaining the customary law militates against the inference that the
customary law must necessarily be proved.”
37
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