existence if it existed, are relevant. The expression general custom or right includes customs or rights common to any considerable class of persons” Inspite of the very clear accommodation by the section of opinions of assessors or the knowledge of indigenous judges in the administration of Customary Law by courts, and indeed the possibility of relying on such knowledge in taking judicial notice of the same as part of the law of the land, their lordships were reluctant to accept such. Those clear intentions of the S.48 of the Indian Evidence Act were unfortunately, to be thrown into serious doubt by Cole and Denison in their Tanganyika: The development of its laws and Constitution P. 137.n.66where they categorically stated“reference in this connection [in Kiswaga s/o Lugama] to S.48 of the Indian Evidence Act is, it is submitted, misconceived for the reason that that section does not contemplate customary law” The Traditional approach was sealed in London at the London Conference on the future of Law in Africa in 1960 where it was recorded that:“the general sense of the conference was that assessors were not a suitable way of finding out the customary law”(See record of the Proceedings p.14) In the superior courts, the resistance to flexibility in proof of customary law and treating it as any other law in taking judicial notice of it, persisted even after independence. In Ernest Kinyanjui Kimani V Muiru Gikango and Another 1965 E.A 735, the court had this to say per Duffus JA“Customary law is a part of the law of Kenya….The parties in this case are Africans and therefore the court will take judicial notice of such customary laws as may be applicable…..The difficulty remains how are these customary laws to be established as facts before the courts? In some cases the court will be able to take judicial notice of these customs without further proof where the particular customary law has been the subject of a previous judicial decision or where the customary law is set out in a book or document of reference………..but usually in the High Court or in a magistrate’s court the relevant customary law will, as a matter of practice and of convenience, have to be proved by witnesses called by the party relying on that particular customary law in support of his case……It would, in my view, be wrong to rely only on the opinion of assessors at the conclusion of the trial.” Newbold V.-P.was even more emphatic on this point. He stated:34