Civil Laws at Kenya
Kenya's civil law system is a comprehensive framework that governs disputes between individuals, private entities, and public entities in a non-criminal context. It is primarily based on a blend of various legal traditions, reflecting Kenya's history as a former British colony.
Here's a breakdown of the key aspects of civil laws in Kenya:
1. Sources of Civil Law:
The Constitution of Kenya, 2010: This is the supreme law of the land and forms the foundation for all other laws, including civil laws. It guarantees fundamental rights and freedoms, and any law inconsistent with it is void.
Acts of Parliament (Statute Law): These are laws passed by the National Assembly of Kenya. They cover a wide range of civil matters.
Common Law and Doctrines of Equity: Kenya inherited its common law system from British colonial rule. This includes principles developed through judicial precedents (case law) and the doctrines of equity, which aim to provide fairness where common law remedies are insufficient.
African Customary Law: In civil cases where parties are subject to it and it's not repugnant to justice, morality, or inconsistent with written law, customary law can be applied, particularly in matters like marriage, property rights, and dispute resolution within communities.
Islamic Law: For proceedings where all parties profess the Muslim religion, Islamic law may apply to matters concerning personal status, marriage, divorce, and inheritance, primarily through the Kadhi's Courts.
International Instruments: Treaties and conventions ratified by Kenya form part of its municipal law.
2. Key Statutes Governing Civil Matters:
While many specific statutes address various civil issues, some of the foundational ones include:
The Civil Procedure Act (Cap. 21) and Civil Procedure Rules: This is the cornerstone of civil litigation in Kenya. It sets out the procedure for instituting, prosecuting, and defending civil suits in the High Court and subordinate courts. It covers aspects like:
Jurisdiction of courts.
Institution of suits (e.g., filing a Plaint).
Service of summons.
Pleadings (e.g., Plaint, Defence, Counterclaim).
Discovery of documents.
Trial procedures.
Judgment and decree.
Execution of decrees.
Appeals and reviews.
The Law of Contract Act (Cap. 23): Governs contractual agreements, their formation, enforcement, and remedies for breach.
The Limitation of Actions Act (Cap. 22): Sets out time limits within which various civil actions must be filed. For example:
Breach of contract: 6 years.
Torts (e.g., negligence, assault, battery): 3 years (with exceptions).
Defamation: 12 months.
Land-related cases: 12 years.
The Employment Act (No. 11 of 2007): Deals with employment relationships, rights, and obligations of employers and employees. Employment disputes are typically heard by the Employment and Labour Relations Court.
The Environment and Land Court Act (No. 19 of 2011): Establishes the Environment and Land Court (ELC), which has original and appellate jurisdiction over disputes related to the environment and land.
The Matrimonial Causes Act (Cap. 152), Marriage Act, 2014, and other family law statutes: Govern matters related to marriage, divorce, judicial separation, and other family issues.
The Children Act (No. 8 of 2001): Focuses on the rights and welfare of children, including matters of custody, maintenance, and adoption.
The Arbitration Act, 1995: Provides the legal framework for arbitration as an alternative dispute resolution mechanism.
The Small Claims Court Act, 2016: Establishes the Small Claims Court for disputes with a monetary value not exceeding Kshs 1 million, aiming for expeditious resolution.
3. Civil Litigation Process (General Overview):
The process for a civil suit in Kenya typically involves:
Demand Letter: Often, the prospective plaintiff sends a demand letter to the prospective defendant, warning of impending litigation and offering a chance for out-of-court settlement.
Filing the Suit: If demands are not met, the plaintiff files a "Plaint" (statement of claim) at the court registry, along with a verifying affidavit, witness list, and documents.
Service of Summons: The defendant is served with a copy of the Plaint and Summons, requiring them to appear in court.
Entry of Appearance and Defence: The defendant enters an appearance (shows intention to defend) and files a Defence and/or Counterclaim.
Pleadings and Interlocutory Applications: Further exchange of pleadings and various applications related to the case (e.g., for discovery, injunctions) may occur.
Case Conference/Trial Conference: The court holds conferences to plan the trial and explore settlement options.
Trial: Parties present their cases, including oral and written evidence.
Judgment and Decree: The court delivers a judgment, and a formal decree is issued, outlining the court's decision and the relief granted.
Execution: If necessary, the winning party can initiate execution proceedings to enforce the decree (e.g., attachment of property, garnishee orders).
Appeals and Review: Parties dissatisfied with the judgment can appeal to a higher court or seek a review by the same court under certain circumstances.
4. Alternative Dispute Resolution (ADR):
Kenya actively promotes ADR mechanisms like mediation and arbitration, as encouraged by Article 159(2)(c) of the Constitution. Court-annexed mediation is also widely used to reduce case backlogs.
Important Note: This is a general overview. Specific civil matters can be highly complex and depend on the unique facts of each case. It is always advisable to seek legal counsel from a qualified advocate in Kenya for any specific legal concerns.
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