UNIVERSITY OF NAIROBI

SECOND SEMESTER 2024/25

GPR 3466: AFRICAN JUSTICE SYSTEMS
TERM PAPER
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Discuss the colonial attitudes towards AJS that are still apparent in today's court
jurisprudence in Kenya.
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Group 1
Name Reg No.
1. Samatar Mohamed Abdi G34/142882/2021
2. Cecilia Mweru Wacihi G34/142383/2021
3. Ibrahim Abdirahman Issack G34/142860/2021
4. Lino Ekai G34/141929/2021
5. Naini Lankas G34/143156/2021
6. Nakoel Evaristus Lokidap G34/139785/2020
7. Shukri Adan G34/142575/2021
8. Tirisa Mokaya Dominic G34/143063/2021
9. William Mutugi G34/143187/2021
10. Yusra Ahmed Jeizan G34/142009/2021
11. Abdi Shale Bulle G34/143215/2021
12. Zain Esther Ndagwe G34/3802/2021
13. Jattani Waqo Jattani G34/143620/2021
14. Maxwel Butembu Luhono G34/142946/2021
15. Emily Anyango Otieno G34/143694/2021
16. Eshe Wangari Waini G34/142822/2021
17. Timothy Bunyali Vikiru G34/142733/2021
18. Chabari Samwel Gitonga G34/141984/2021
19. Abdibashir Alinoor Ibrahim G34/143102/2021
20. Ro-aman Wakasa Aiio G34/3822/2021
TABLE OF CONTENTS

INTRODUCTION....................................................................................................................1

COLONIAL ATTITUDES TOWARDS THE AFRICAN JUSTICE SYSTEM..................2

THE ROLE OF COLONIAL LEGAL EDUCATION IN SHAPING JUDICIAL

ATTITUDES.............................................................................................................................5

i) Application of customary law through a common law lens...........................................5

ii) Application in case laws.................................................................................................5

iii) Legal education anchored in the colonialist laws......................................................5

iv) A Paradigm shift: Application in the Alternative Justice Systems.................................6

THE RECOGNITION OF AJS IN KENYA’S LEGAL FRAMEWORK...........................7

Constitutional Recognition of AJS.........................................................................................7

The Judiciary’s Policy and Institutional Developments.........................................................7

Legislative and Institutional Support.....................................................................................8

Judicial Interpretation and Integration of AJS.......................................................................8

CHALLENGES IN INTEGRATION.....................................................................................9

COLONIAL ATTITUDES IN MODERN JURISPRUDENCE...........................................9

BARRIERS PREVENTING AJS FROM ACHIEVING FULL JUDICIAL

ACCEPTANCE.......................................................................................................................11

Lack of Legal Recognition and Standardization..................................................................11

Concerns over Human Rights and Gender Equality............................................................11

Lack of Capacity and Resources..........................................................................................11

Epistemological and Cultural Bias in the Legal System......................................................12

Issues of Accountability and Transparency..........................................................................12

THE WAY FORWARD: STRENGTHENING AJS IN KENYA........................................12

Strategies To Reduce Colonial Biases in Judicial Reasoning..............................................12

i
 1. Decolonizing legal education...................................................................................12
2. Critical reassessment of legal education and embrace a philosophical approach that
acknowledges the complexities of identity and culture...................................................13
3. Interpretation............................................................................................................14

Recommendations for Training Judges and Legal Practitioners to Embrace AJS......14

1. Investment in broad capacity building.....................................................................14

WHAT KENYA CAN LEARN FROM COUNTRIES THAT HAVE SUCCESSFULLY

INTEGRATED AFRICAN JUSTICE SYSTEMS INTO FORMAL LAW.......................15

Recognize Customary Law as Equal, Not Inferior..............................................................15

Create a Hybrid Court System.............................................................................................15

Professionalize Traditional Leaders.....................................................................................15

Balance Custom and Modern Human Rights.......................................................................15

Use Traditional Systems for Restorative Justice..................................................................15

CONCLUSION.......................................................................................................................15

BIBLIOGRAPHY..................................................................................................................17

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INTRODUCTION

African Justice Systems (AJS) refer to the indigenous methods of dispute resolution
developed by African communities long before colonial rule. Unlike Western models of
justice, which are often individualistic, African Justice Systems are largely communal and
restorative, emphasizing reconciliation and compensation 1. AJS is underpinned by African
Customary Law the dynamic and evolving set of norms that governs the behavior of
communities and is passed down orally across generations. Each ethnic community in Kenya,
and Africa more broadly, has its unique customary laws and justice mechanisms suited to its
way of life.

In pre-colonial Kenya, these indigenous justice systems played a central role in maintaining
order and resolving conflicts. Disputes ranging from minor disagreements to major offenses,
including murder and property disputes, were addressed by community elders using culturally
sanctioned methods. These systems did not necessarily distinguish between civil and criminal
matters, instead focusing on restoring balance within the community.

However, with the onset of British colonialism in Kenya, a foreign legal system was
superimposed upon indigenous structures. Colonialists brought with them English common
law, the doctrines of equity, and statutes of general application, which were deemed superior
to native systems. In the 1938 case of Gwao bin Kilimo v Kisunda bin Ifuti2, a British judge in
an East African colonial court determined that a British court in Africa can only apply the
British standard of justice and morality. Using the British standard of justice to determine
customary law matters may jeopardize local communities' access to justice by ignoring
indigenous customs and applying common law. It is against this backdrop that this essay
explores the persistence of colonial biases within the judiciary, examining how they still
impact the application of AJS in Kenya today, and the challenges these systems face in
achieving full legitimacy within the formal legal structure.

COLONIAL ATTITUDES TOWARDS THE AFRICAN JUSTICE SYSTEM

The colonisation of East Africa led to the introduction of European legal systems into the
colonial territories, while African customary law continued to apply solely to the Indigenous
population. This created a discriminatory dual legal and judicial system. 3Colonial attitudes on
African justice systems were condescending and dismissive, shaped more by a desire to
1
Kariuki, F. (n.d.). Customary Law Jurisprudence in Kenya: Implications for Traditional Justice Systems.
Strathmore University.
2
Gwao bin Kilimo v Kisunda bin Ifuti (1938) 1 TLR (R) 403

1
strengthen colonial control than by any genuine interest in justice or respect for local legal
customs. European colonial authorities often regarded Indigenous African legal practices as
backward, illogical, or uncivilized, and frequently aimed to undermine or co-opt these
systems to better serve their administrative and economic interests.4

European colonizers believed in the inherent superiority of Western legal systems, viewing
Indigenous practices as backward or unscientific. This view is demonstrated in the case of R
v Amkeyo,5 where the central issue was whether a woman married under African customary
law could be required to testify against her husband. Under common law, a husband and wife
were considered legally as one person, and thus neither could be forced to testify against the
other. However, Chief Justice Hamilton ruled that a woman married according to African
customary law did not qualify as a legal wife under the formal law. As a result, the court
compelled her to testify against her husband. This case highlights how African customary law
was marginalized to the bottom of the legal food chain and subordinated to colonial legal
frameworks such as judicial precedents, ordinances, and statutes.

They often claimed that Africans were not ready for complex legal reasoning and thus needed
guidance from "civilized" Europeans.6 Settlers viewed English law as the pinnacle of legal
development, embodying unmatched fairness and rationality. 7 However, they also maintained
that it was poorly suited to the African context. They believed that when African defendants
were acquitted on legal "technicalities," or received what they perceived as lenient
punishments, it only led to increased criminal behaviour. The settlers argued that the legal
system should be adapted—manipulated, if necessary—to serve their own interests. The law,
in their view, should function as an instrument of white dominance, used to control and
subdue Africans. It needed to be racially biased, personally applied, and deliver quick, harsh

3
Harald Sippel, Customary Law in Colonial East Africa (2022), accessed on 18 April at
[Link]
4
Brett Shadle, Changing traditions to meet current altering conditions': Customary law,
African Courts and the rejection of codification in Kenya, 1930-60 (1999), pp. 411-431,
(Cambridge University Press) accessed
[Link]
5
R v, Amkeyo [1917] 7 EALR 14.
6
Brett Shadle, White settlers and the law in early colonial Kenya (2010),510-524, accessed
on online at [Link] on 19th April 2025
7
Cooper Frederick, From Slaves to Squatters: Plantation Labor and Agriculture in Zanzibar
and Coastal Kenya (1980), (published in 2017) 1890–1925, (Yale University Press)
2
penalties. In essence, settlers embraced a more archaic and punitive vision of the law,
reminiscent of feudal justice or the legal practices of Jim Crow America. 8

Customary law was tolerated or codified only when it helped maintain order and facilitated
cheap administration.9 This type of postcolonial legal approach was characterized by a
reluctant tolerance and passive disregard for indigenous legal traditions. This reflected a form
of colonial legal reform in which civil and criminal laws were codified based on British
common law. To buttress this position, Chanock argued that African Customary Law had to
be applied in the native courts from colonial authorities’ perspective. Rather than completely
abolish indigenous legal systems, colonial powers often restructured them to suit their own
needs.10

The British had a limited presence across their expansive African colonies and lacked the
resources to govern them directly. As a solution, colonial authorities developed various
methods of control, including indirect rule that incorporated elements of African customary
practices.11 However, the extent to which these customs were permitted depended on the
English Law Extent of Application Act, which applied to all British colonies. This Act
introduced English law—including common law, statutes of general application, and
principles of equity—into colonial legal systems. The result was a dual legal structure:
English law and African customary Law (ACL). However, any customary law that conflicted
with English law was deemed invalid. Consequently, many African customs were struck
down by courts under repugnancy clauses. 12 English common law remained largely reserved
for the white settler minority. Further, the 1897 Order in Council stipulated that African
customary law could be applied to natives, provided it did not conflict with principles of
justice and morality.13

8
Brett Shadle, White settlers and the law in early colonial Kenya (2010),510-524, accessed on online at
[Link] on 19th April 2025
9
Brett Shadle, Changing Traditions to Meet Current Altering Conditions’: Customary Law, African Courts and
the Rejection of Codification in Kenya, 1930–60. The Journal of African History, vol. 40, no. 3, 1999, pp. 411–
431. Cambridge University Press.
10
Martha Gayoye, the coloniality and evolution of African customary law (published in 2025), (International
Institute for the Sociology of Law) accessed at HTTPS://[Link]/10.35295/[Link].1976 on 19 April 2025.
11
E.A. Taiwo, Repugnancy clause and its impact on customary law: comparing the South African and Nigerian
positions - some lessons for Nigeria (2009) accessed at [Link] on 19 April
2025.
12
Martha Gayoye, the coloniality and evolution of African customary law (published in 2025), (International
Institute for the Sociology of Law) accessed at HTTPS://[Link]/10.35295/[Link].1976 on 19 April 2025.
13
Article 52, Order-In-Council (1897).

3
Colonial native tribunals were established to handle disputes involving deeply personal issues
such as marriage, divorce, inheritance, and child custody. These tribunals were overseen by
colonial administrative officers who lacked formal legal training. As Martin Chanock (1985)
explains, the recognition of customary law was treated as a matter of fact, with colonial
officials collaborating with local elders to determine its content. In the case of Lolkilite ole
Ndinoni v Netwala ole Nebele (1952),14 Chief Justice Sir Edward (Uganda) ruled that native
tribunals did not qualify as legitimate courts. By 1951, these tribunals were replaced with
African Courts (and later magistrates' courts) to adjudicate personal and civil matters.
Although procedural fairness was expected, African Customary Law (ACL) continued to be
treated as a factual claim—one that had to be proven by those asserting it, often with the help
of expert witnesses, typically male elders.15

This attitude reflected a broader colonial attitude that regarded ACL as inferior to formal
legal systems, denying it the status of a fully developed legal tradition. ACL was effectively
reshaped into a fixed personal code for Africans, perceived as static and incapable of adapting
over time.16 In stripping ACL of its natural ability to evolve, colonial rule stifled its
development. Its rigid application and heavy dependence on male interpretation—by both
colonial officials and local elders—produced a version of ACL that disproportionately
benefited men.17

Judicial Hierarchy Reflecting Colonial Attitudes

Another colonial vestige apparent in today’s jurisprudence is the hierarchical structure of the
judiciary, which mirrors the British court system. From the Supreme Court down to the
Magistrates’ Courts, authority flows in a rigid top-down structure that often sidelines
community-based justice. Decisions from higher courts set binding precedent (stare decisis),
limiting the space for customary reasoning in lower courts. This structure implicitly
reinforces the superiority of formal law over African Justice Systems and undermines
localized justice mechanisms. As noted during class discussions, this hierarchy often
delegitimizes customary resolutions, especially when they contradict formal legal doctrine,
even if such resolutions enjoy broad community acceptance.

14
Lolkilite ole Ndinoni v Netwala ole Nebele [1952] 19 EACA.
15
Lisa Owino, Application of African Customary Law: Tracing its Degradation and Analysing the Challenges it
Confronts, pp.147-149 (Strathmore Law Review).
16
Rita Ozoemena, Guided Transformation of African Customary Law in the 30 Years of South African
Democracy and Looking Beyond (2024), (International Journal of Law and Development) accessed at
DOI:10.25159/2520-9515/18659 on 17 April 2025
17
Lisa Owino, Application of African Customary Law: Tracing its Degradation and Analysing the Challenges it
Confronts, pp.147-149 (Strathmore Law Review).

4
THE ROLE OF COLONIAL LEGAL EDUCATION IN SHAPING JUDICIAL
ATTITUDES

Colonial legal education has profound effects on the administration of justice in Kenya. This
is because it prioritized the interests of the colonialists and not those of Africans. It was
characterized by the formalistic and rigid principles and rules brought by the British
colonialists. One major characteristic of colonial legal education was the emphasis on
common law over customary law. This analysis examines the application of colonial legal
education in Kenya, its prominence in the legal system and its applicability in the
contemporary society. Colonial legal education played the following roles in shaping the
Kenyan judicial attitude:

i) Application of customary law through a common law lens

Common law refers to the set of principles and rules derived from judicial precedents. 18
During the colonial period, common law was more prominent in Kenya hence, a direct legacy
of the country’s colonial history. It operated on the principle of stare decisis which means that
courts were bound to follow principles set by previously determined cases. The Judicature
Act, 1967(repealed) stated that common law would be applied in so far as the circumstances
of Kenya would allow.19 In addition, customary law was only applicable if it was not
repugnant to justice and morality. The standard was defined in the colonialist’s view which
was quite different from the Africans. Customary law would often be disregarded as it was
seen as retrogressive compared to common law anchored on precedents which fostered
consistency and predictability. Okoth Ogendo reiterated that colonialists placed limitations on
African customary law due its inferiority to written laws.20

ii) Application in case laws

The Order in council of 1887 placed limits on the application of customary law. In areas such
as succession and family, the judges used common law to settle disputes. In Sisto Wambugu v
Kamau Njuguna21, the court applied common law doctrines of adverse possession and
specific performance to adjudicate on matters relating to land. Similarly, in Kamanza s/o
Chiwaya v Mwanza w/o Tsuma, the High Court held that the jurisdiction of Magistrates court
related to land disputes, intestacy, family relations, seduction of unmarried women and girls,

18
Bryan A. Garner, Black's Law Dictionary (10th ed. 2014)
19
Judicature Act, 1967
20
Okoth Ogendo, ‘The Tragic African Commons: A Century of Expropriation, Suppression and Subversion’
21
[1983] eKLR

5
enticement of married women into adultery, issues concerning the status of women and
children. Claims of tort and contract were not expressly provided in the Magistrates Act,1967
hence common law was applicable in such instances.

To reinforce the inferiority of the customary law and as expressed in Ernest Kinyanjui
Kimani v Muiru Gikanga & Another22, where there was a lacuna in law, any party who
wanted to rely on it had to prove its existence as opposed to codified law.

iii) Legal education anchored in the colonialist laws

Prior to the coming of the colonialists, Kenya did not have its own system of legal education.
The legal profession was introduced by colonialists. However, for one to practice as a lawyer
or judge in Kenya, one had to qualify as a barrister in British law. This meant that one had to
go to the United Kingdom to study law, instilling notion of superiority of the colonialist’s
system over customary norms. One notable prominent lawyer was Argwings Kodhek, the first
East African lawyer who studied law in the UK then later came to practice law in Kenya.
Most judges who served during the colonial era were British. Notable examples are Sir
Robert William Hamilton, the first Chief Justice of East African Protectorate and Sir John
Ainley (1962). Notably, judicial appointments and qualifications were based exclusively on
British standards, reinforcing the dominance of colonial legal norms.

Currently, the Kenyan legal education system is still anchored in British system. This is
evident from the court attire worn by advocates and judges, the complex legal language and
drafting techniques, British origin texts and the similar curricular system.

iv) A Paradigm shift: Application in the Alternative Justice Systems

After the promulgation of the Constitution of Kenya, 2010, customary law gained more
recognition in Articles 159(2) (of alternative forms of dispute resolution) and (3)(traditional
dispute resolution mechanisms (TDRMs)). For TDRMs to be used, they must be consistent
with the Bill of Rights, the Constitution or any other written law and not repugnant to Justice
and morality.23 In Republic v. Mohamed Abdow Mohamed (2013) eKLR, the court allowed the
use of traditional dispute resolution method to settle a murder case. In this case, the defendant
was charged with the murder of Osman Ali Abdi. During trial, the prosecution applied for
withdrawal of the case stating that the claimant and the deceased’s family had resorted to

22
[1965] EA 735
23
Constitution of Kenya, 2010

6
customary settlement in form of blood money, camels, goats and ritual performances. The
court allowed application, and the matter was subsequently withdrawn.

THE RECOGNITION OF AJS IN KENYA’S LEGAL FRAMEWORK

Alternative Justice Systems (AJS) have gained increasing prominence within Kenya’s legal
discourse, especially following the promulgation of the Constitution of Kenya, 2010. Article
159(2)(c) of the Constitution24 explicitly mandates the judiciary to promote AJS, provided
they do not contravene the Bill of Rights or repudiate justice. This recognition marks a
significant shift from the colonial-era marginalization of customary dispute resolution
mechanisms and signals a broader commitment to inclusive justice.

Constitutional Recognition of AJS

Article 159(2)(c) of the Constitution states that “in exercising judicial authority, the courts
and tribunals shall be guided by…the principles…that alternative forms of dispute resolution
including reconciliation, mediation, arbitration and traditional dispute resolution
mechanisms shall be promoted”.

Notably, this recognition acknowledges the reality that a significant portion of legal disputes,
especially in rural and marginalized communities, are resolved through customary or
community-based forums. These forums, which often emphasize reconciliation and
restoration over punishment, resonate more with local values and socio-cultural contexts than
the adversarial nature of formal litigation.

The Judiciary’s Policy and Institutional Developments

Following constitutional recognition, the Judiciary of Kenya took significant steps toward
institutionalizing AJS. In 2020, the Judiciary launched the Alternative Justice Systems Policy
(AJS Policy),25 whose goal is to integrate traditional and community-based justice systems
into the formal legal framework. The policy was steered then under the leadership of Justice
Joel Ngugi as Chair of the National Steering Committee on AJS (NaSCI-AJS)

First, the policy seeks to recognize, regulate and enhance the use of alternative justice system
in Kenya. It also aligns the policy’s operation with the principles and values of
the Constitution of Kenya, 2010 and international human rights standards. While not
24
Article 159(2)(c) COK 2010
25
AJS policy ,2020

7
explicitly named "Africa Justice System", these instruments promote broader principles of
access to justice, fair trial rights, and the importance of diverse and flexible mechanisms for
dispute resolution, which can include Africa Justice System. Key instruments include the
Universal Declaration of Human Rights (UDHR) 26, the International Covenant on Civil and
Political Rights (ICCPR)27, and the UN's Sustainable Development Goals (SDGs)28

They emphasize equal justice for all, particularly for vulnerable groups like persons with
disabilities and women, while respecting their rights, will, and preferences. Alternative
Justice System should also be accessible, affordable, and comprehensible, and should ensure
fair and just remedies for violations of rights. The Policy seeks to create linkages between
courts and traditional mechanisms while ensuring that human rights and constitutional norms
are not compromised.

The AJS Policy acknowledges that colonial legal structures undermined African dispute
resolution traditions, branding them as backward or unstructured. The Policy proposes a
paradigm shift where community justice systems are not seen as inferior but as
complementary to formal systems. It recommends enhancing the capacity of traditional
actors, aligning customary practices with constitutional values, and developing a framework
for collaboration between courts and communities. Examples of AJS recognized under the
policy includes; Restorative Justice, Alternative Dispute Resolution (ADR), Customary
Justice and Traditional Dispute Resolution mechanism (TDRM).

Legislative and Institutional Support

Besides the Constitution and the Judiciary's AJS Policy, legislative instruments such as the
Judicature Act, The Legal Aid Act (2016), and The Court-Annexed Mediation Rules provide
29
auxiliary support for AJS. For instance, Section 3 of the Judicature Act allows the
application of customary law in civil cases, where appropriate, and not inconsistent with any
written law.

In practice, the establishment of Court-Annexed Mediation in various High Courts across the
country has operationalized mediation as part of the judicial process. Although not
synonymous with traditional AJS per see, this signals a shift towards accommodating non-
adversarial processes. Courts also encourage TDRM, Customary Justice, and Restorative

26
UDHR
27
ICCPR
28
SDGs
29
Judicature Act, sec 3

8
justice by disputants to settle their issues. In the case of Lubaru M’Imanyara Vs Daniel
Murungi (2013)30 eKLR, the court was persuaded that to resolve community disputes in
contemporary times, it was important to recognize the role played by Nchuri Ncheke and it
agreed that a land matter be transferred to Njuri Ncheke for determination.

Additionally, legal aid schemes often encourage disputants to first seek resolution through
AJS before engaging in expensive and time-consuming litigation. These developments show
legislative and institutional intent to decongest courts and embrace diverse models of justice
delivery.

Other laws that buttress the use of customary to resolve disputes include Marriage Act (s68) 31
that provides for mediation in customary marriages and Environment and Land Court Act
(s18).32

Judicial Interpretation and Integration of AJS

Kenyan courts have demonstrated cautious engagement with AJS, sometimes validating
community resolutions and at other times questioning their conformity with legal standards.
In R v Mohamed Abdow Mohamed [2013] eKLR,33 the court acknowledged the value of
traditional dispute resolution.

However, challenges remain. There is often tension between the constitutional mandate to
promote AJS and judicial reluctance rooted in formalistic legal training inherited from
colonial times. Courts sometimes require that AJS outcomes be subjected to formal validation
processes, thereby reducing their autonomy and legitimacy in the eyes of local communities.

This was evidenced in the infamous case of Republic Vs Amkeyo (1917)34 that failed to
recognize a marriage conducted under African customary practice because of ‘bride price’
being ‘wife purchase’. This Jurisprudence pushed most African Judicial systems to primarily
adopt the conventional justice systems as the main and formal ways of resolving disputes
before the advent of 2010 constitution.

CHALLENGES IN INTEGRATION

30
Lubaru M’Imanyara Vs Daniel Murungi (2013)
31
Cap 150 of The Laws of Kenya
32
Cap.8D of The Laws of Kenya. The Section provides for application of customary law as guiding principles
33
In R v Mohamed Abdow Mohamed [2013] eKLR,
34
R v Amkeyo (1917)

9
Despite the legal and policy frameworks, the integration of AJS into mainstream judicial
processes remains partial. Issues such as lack of legal clarity, inconsistent application by
courts, and insufficient training for judicial officers on the value and operation of AJS persist.
Moreover, the diversity of ethnic customs in Kenya makes the standardization of AJS
mechanisms a complex task.

The constitutional, legislative, and policy frameworks in Kenya mark a transformative shift
toward recognizing and institutionalizing AJS. However, the full realization of this promise
depends on judicial openness, structured institutional support, and continuous civic
engagement. Without addressing colonial legal legacies that prioritize formal systems over
community-based ones, AJS may remain constitutionally acknowledged but practically
marginal.

COLONIAL ATTITUDES IN MODERN JURISPRUDENCE

Colonial attitudes towards African justice systems were often dismissive and undermining of
indigenous practices. Colonial powers frequently replaced traditional African legal systems
with Western frameworks, disregarding local customs and governance structures 35. This
imposition was driven by the colonial agenda to control and exploit resources, often
prioritizing the interests of the colonizers over the needs of the local population. This led to a
hybridization of legal principles, where traditional customs were marginalized or disregarded
all together.

The notion that a colonial country is imbued with “primitive” law, and it is the “gift” of the
law of the colonizer becomes, for Douzinas and Gearey 36, one of the central justifications for
the colonial state. This mind-set is illustrated in the Privy Council decision of in re Southern
Rhodesia37, where Lord Sumner argued that:

“The estimation of the rights of aboriginal tribes is always inherently difficult. Some tribes
are so low in the scale of social organisation that their usages and conceptions of rights and
duties are not to be reconciled with the institutions or the legal ideas of civilised society. Such
a gulf cannot be bridged. It would be idle to impute to such people some shadow of the rights
known to our law and then to transmute it into the substance of transferable rights of
property as we know them.”

35
Bachmann S.D, Frost T, Colonialism, justice and the rule of law: a Southern African and Australian narrative
36
Douzinas C, Gearey A., Critical jurisprudence: the political philosophy of justice. Portland, Or.: Hart
Publishing.
37
Bachmann S.D, Frost T, Colonialism, justice and the rule of law: a Southern African and Australian narrative

10
The introduction of Western legal principles marginalized indigenous laws, leading to a loss
of cultural identity and autonomy. Traditional dispute resolution methods, which were
community-centred and restorative in nature, were often rendered obsolete. This created a
disconnect between the imposed legal systems and the cultural contexts of African societies,
leaving a legacy of challenges in contemporary justice systems.

Colonial attitudes have left a lasting imprint on modern jurisprudence, shaping legal systems
and frameworks in ways that continue to influence societies today.

These systems resulted in long-standing disparities in areas like property rights and
governance leaving enduring consequences, particularly in post-colonial societies striving to
reconcile traditional practices with imposed legal systems. Despite the dominance of colonial
legal systems, colonized populations often found ways to resist or adapt these frameworks.
This included the creation of alternative forms of justice, or the reinterpretation of laws
imposed to align with local values 38. The legacy of colonialism in law is evident in ongoing
debates about systemic racism, land rights, and the role of indigenous legal traditions in
modern governance39.

Despite the creation of alternative forms of justice as well as the quest to reinterpret imposed
laws to align with local values, judicial precedence is replete with decisions that demonstrate
that courts often prefer formal litigation over community-based resolutions in cases where
legal complexities, constitutional rights, or public interest are at stake. Dr. Kariuki Muigua
posits that where there are power imbalances and need for protection of human rights, then
courts are the most viable channel to seek redress 40. In instances of gross violation of human
rights, ADR or even traditional justice systems cannot work examples being the Endorois
case41 and the Ogiek case42 where the two communities separately sought the intervention of
the African Court on Human and People's Rights to compel Kenya respect their rights by
refraining from evicting them from their ancestral lands.

38
Merry S.E., Law, Jurisprudence, and Social Thought: Colonialism, Post-Colonialism, and Legal Theory
Political and Legal Anthropology Review Vol. 17, No. 1 (1994), pp. 95-100
39
Darian-Smith E., Post-colonial attitudes and the relevance of incommensurability. International Journal of
Law in Context. 2021;17(1):19-23. doi:10.1017/S1744552321000148
40
Kariuki M., Empowering the Kenyan People through Alternative Dispute Resolution Mechanisms: Alternative
Dispute Resolution Journal Volume 3 Issue 2 - 2015.
41
276/03 Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois
Welfare Council) / Kenya.
42
African Commission on Human and Peoples Rights V Republic of Kenya, Application 006/2012.

11
In Dancan Ouma Ojenge v P.N. Mashru Limited the Employment and Labour Relations
Court in Mombasa noted that although superstition played a great role in dispute resolution
especially in seeking and finding the truth, the use of traditional dispute resolution
mechanisms in that case was repugnant to justice and morality, inconsistent with the
Constitution and the Law. In this case, the Respondent company alleged the Claimant had
stolen a computer box and resorted to terminating his contract unfairly and unlawfully upon
receiving the opinion of a witchdoctor about the employee’s guilt. The Respondent conducted
investigation and disciplinary proceedings by ordeal which was conducted as by a
witchdoctor.

In Republic v Abdulahi Noor Mohamed (alias Arab) the accused was charged with murder,
but the court urged that the charge against the accused was a felony and ‘as such
reconciliation as a form of settling the proceedings is prohibited.’ This was after the accused’s
advocate submission that the two families had signed an agreement out of court in accordance
with the Somali culture, law and religion and reconciled their minds and felt that the
agreement ensured justice for them and the community.

Further, the preference for formal litigation over community-based resolutions in Kenyan
courts can be attributed to several key factors. First, constitutional matters often require
formal litigation, as they involve the interpretation and enforcement of laws that must adhere
to strict legal frameworks. Similarly, in criminal cases, courts tend to rely on formal litigation
to ensure that justice is served, as community-based resolutions may lack the necessary
procedural safeguards for fair trials. This is evident in the case of Republic v. Abdulahi Noor
Mohamed, where the court held that a felony should be handled through formal legal
processes rather than reconciliation. Environmental disputes also contribute to this trend,
particularly with the establishment of the Environment and Land Court (ELC) in Kenya,
which addresses complex environmental and land-related issues. While the ELC encourages
Alternative Dispute Resolution (ADR), it often resorts to formal litigation for cases involving
environmental governance and land use planning. A report from the Land Development
Governance Institute (LDGI) in 2014 noted that while ADR is generally more effective and
cost-efficient, some respondents preferred the court process due to concerns that ADR
sometimes lacked fair hearing, highlighting its limitations in certain situations.

BARRIERS PREVENTING AJS FROM ACHIEVING FULL JUDICIAL

ACCEPTANCE

12
The following are some of the primary barriers that Alternative Justice Systems (AJS), which
often rely on conventional, informal, or community-based dispute resolution procedures,
must overcome in order to fully receive court acceptance:

Lack of Legal Recognition and Standardization

The lack of a defined legal framework for the acceptance and control of AJS is a major
obstacle. Many jurisdictions continue to treat AJS as incidental or informal, even if some
have recognized it through constitutional or legislative provisions.
According to some academics, integration with formal systems is challenging since informal
justice systems function in a "legal grey zone." 43 Their legitimacy in the perspective of formal
legal authorities is weakened by the absence of standardization.
The court stressed that informal conflict settlement procedures must conform to constitutional
requirements, particularly in criminal cases, while acknowledging the value of customary
justice44.

Concerns over Human Rights and Gender Equality

International human rights standards, especially those pertaining to women, minorities, and
children, are frequently condemned for not being upheld by AJS processes.
Many traditional institutions, according to Merry, uphold patriarchal standards and may put
communal cohesion ahead of individual rights, which can have discriminatory effects 45.
Customary law must adhere to the equality and nondiscrimination principles of the
constitution, as the Kenyan Court of Appeal affirmed when it invalidated a discriminatory
customary inheritance procedure that harmed women46.
Legal officials and legislators oppose this because they believe that AJS is fundamentally
prejudiced or backward.

Lack of Capacity and Resources

The lack of administrative support, documentation systems, and qualified staff in many AJS
systems limits their capacity to enforce results or guarantee fair procedures.
According to Golub, underfunding and a lack of technical assistance frequently plague
community-based judicial systems, giving the formal judiciary the impression that their

43
Customary law and policy reform (Chirayath, Sage & Woolcock (2005))
44
Republic v Mohamed Abdow Mohamed [2013] eKLR.
45
Human Rights and Gender Violence (2006)
46
Rono v Rono and Another [2005] eKLR.

13
verdicts are haphazard or untrustworthy47.
Nonetheless, the courts reaffirmed the necessity of due process and accountability, even in
informal systems, and stressed that all justice systems must adhere to the Bill of Rights 48.

Epistemological and Cultural Bias in the Legal System

Bias against non-Western legal traditions is common in formal legal systems, which reject
them as inferior or unscientific.
In order to maintain a legal monoculture, Santos highlights how contemporary legal systems
frequently disregard indigenous and community-based forms of justice 49. Skepticism
regarding AJS is frequently shown in judicial declarations. While acknowledging the use of
traditional conflict resolution, the court in Republic v. Mohamed Abdow Mohamed [2013]
eKLR stressed that criminal cases are still the purview of formal courts. Judicial recognition
of AJS as valid or authoritative sources of justice is restricted by this bias.

Issues of Accountability and Transparency

AJS systems are occasionally thought to lack openness or explicit accountability procedures,
particularly in cases when proceedings are conducted orally or without documentation. Ubink
points out that AJS rulings may seem capricious or swayed by local elites in the absence of
appeal or oversight procedures50. Because of this worry, formal courts are reluctant to adopt
or incorporate AJS rulings.
Despite providing easily accessible, culturally appropriate, and community-accepted dispute
resolution methods, AJS has institutional, legal, and normative barriers that prevent it from
gaining full judicial approval. Resolving these issues calls for mutual respect between formal
and informal judicial systems, legal reform, and capacity building.

THE WAY FORWARD: STRENGTHENING AJS IN KENYA

Strategies To Reduce Colonial Biases in Judicial Reasoning.

1. Decolonizing legal education.

A decolonized legal education will have to show a move from a Eurocentric conception of
law rooted in colonialism to a more inclusive legal culture. 51 To counter this, there must be a
47
“Beyond Rule of Law Orthodoxy” (2003)
48
Josephat Musila Mutisya v The AG & Others [2017] eKLR.
49
Toward a New Legal Common Sense (2002)
50
Customary Justice: Perspectives on Legal Empowerment (2008)
51
Rachael kipkoech, “Decolonizing Kenya's legal system: The role of legal education, philosophical foundations
and constitutional interpretation” ( November 2024)

14
re-orientation of African intellectuals through the production of knowledge. This can be
done through teaching an African lawyer what it is to be African and what is at stake in being
African.52

Research has demonstrated that considering the learner’s community and background
enhances the effectiveness of learning. An indigenous knowledge system not only has the
potential for fostering democratic living but also for liberating individuals. The emancipatory
aspect of any educational system is essential for transforming society. Thus, the advocacy for
incorporating indigenous knowledge systems (IKS) is a proactive step towards empowering
individuals through the utilization of local knowledge.53

Decolonization of the law curriculum demands a shift from a western liberal hegemonic
system of knowledge. Decolonization moves beyond a critique of Eurocentrism to an
interrogation of what ’African’ and ‘African law’ entail. 54 It should therefore involve the
critical inclusion of epistemologies, ways of knowing, lived experiences, texts, and scholarly
works that have been excluded from our disciplines. It asks us to think critically about the
relationship between the location and the identity of writers, and their subjects.

2. Critical reassessment of legal education and embrace a philosophical approach

that acknowledges the complexities of identity and culture.

This understanding will guide us in addressing the challenges of integrating traditional values
within modern legal frameworks. It has been suggested by scholars in some post-colonial
societies that a return to indigenous languages and practices can restructure attitude towards
local and indigenous cultures.55 This suggestion has been critiqued by the likes of Akaash
Rathore who urges, in a lecture on decolonizing jurisprudence, that major public intellectuals
should recognize the absence of philosophical understanding at the heart of how they think. 56
Rathore critiques the notion that decolonization should be ‘backward-looking’, aiming to
return to an idealized past ‘where all was well’. He challenges this view by posing critical
questions: How feasible is this return to the past? Who actually desires this, and what era are

52
ibid
53
ibid
54
Asikia karibi, “An agenda for Decolonizing law in Africa: conceptualizing the curriculum” volume 2, issue 1
(2020)
55
Mambrol, “decolonisation”
56
Rachael, “Decolonizing Kenya's legal system: the role of legal education, philosophical foundations and
constitutional interpretation”

15
we to return to? In a nation with diverse tribes and traditions, which culture would be chosen?
And if one is indeed selected, could this not be seen as a form of re-colonization?

Additionally, Gikandi has argued that there is an urgent need to question the ideological
foundation on which the narratives of decolonization were constructed and especially the
assumption that African cultures and selves were natural and holistic entities that were
repressed. The question of which direction decolonization should take can be addressed in
three ways:57 first, a return to indigenous culture or aspects thereof; second, abandoning the
pursuit of decolonization; and third, transcending these binaries.

Regarding the third option, Rathore argues that rather than hastily trying to reconcile Eastern
and Western perspectives by surpassing this binary, a more viable approach involves a
dialectical process. This process would entail recognizing the ‘otherness’ within us,
acknowledging both our identities and differences without obscuring distinctions or assuming
‘we are all the same’ or that ‘ideas have no geographical boundaries’.

The path forward for Africa, as Taiwo suggests, is not in rejecting modernity wholly but in
reclaiming it. This requires a dual approach: addressing the structural legacies of colonialism
through governance reforms while also engaging with the deeper cultural and philosophical
transformations necessary to create a future rooted in African identity, values, and progress. 58

3. Interpretation.

“Judges ought to remember that their office is jus dicere nut just jus dare; to interpret law and
not to make law, or give law”59

The Constitution contains detail, which remains subject to interpretation by the courts.
Because of the level of complexity and the hard questions the Constitution pauses, there is
need to find new and innovative ways of thinking about how to answer these questions. 60 The
people produced the Kenya constitution 2010, but the challenge of implementation lies in the
legal profession.

For a long time, legal education and training in Kenya has principally focused on English
black letter law. Legal discipline continues to operate as a one-dimensional discipline, paying
very little or no attention to the multifaceted intersections between legal and social problems.
57
ibid
58
ibid
59
[Link]/kanvist/E-Texts/Bacon/[Link]
60
Hon. Justice Nancy Baraza, “The manifesto of a modern judiciary” ( August 2011)

16
The Constitution of Kenya 2010 shatters this view of law. The Constitution shakes up all
existing laws, institutions and legal frameworks. There are many laws that need to be
reviewed, realigned, created, recreated and re-imagined. It follows that legal education, and
judicial training also needs a face-lift. As we grapple with the question of judicial
transformation, we must also think about transformation of our legal education.

Recommendations for Training Judges and Legal Practitioners to Embrace AJS.

1. Investment in broad capacity building.

There is need for Kenya to invest in broad capacity building in order to effectively
mainstream AJS. This can be achieved by enhancing the capacity of AJS practitioners
through education, training and mentorship.61 This will enhance their skills and ability to
manage disputes through AJS in a manner that safeguards the key concepts of justice such as
human rights. It is also important to strengthen the processes for selection, election,
appointment and removal of AJS practitioners to enhance their competence and
accountability in the administration of justice. 62 There is also need for continued public
sensitization and enhancing access to information on AJS in order to boost support and
accelerate the uptake of AJS including ADR mechanisms in Kenya. It is also imperative for
African countries in collaboration with other stakeholders to facilitate resource mobilization
and management for the development and enhancement of AJS.

WHAT KENYA CAN LEARN FROM COUNTRIES THAT HAVE SUCCESSFULLY

INTEGRATED AFRICAN JUSTICE SYSTEMS INTO FORMAL LAW

Recognize Customary Law as Equal, Not Inferior

South Africa, for instance, under the South African Constitution (1996) formally recognizes
customary law as a source of law, provided it does not conflict with human rights. The
constitution gives traditional courts authority in communities63. Kenya can strengthen Article
159(2)(c) of the Constitution to promote traditional dispute resolution by giving customary
systems clear, protected spaces within formal structures and not just informal alternatives.

61
Kariuki muigua, “mainstreaming Alternative justice systems in Africa”
62
ibid
63
Constitution of South Africa 1996 section 211

17
Creating a Hybrid Court System

Botswana, for example, runs customary courts alongside magistrate courts. These customary
courts handle most cases, especially in rural areas64. In addition, they are cheaper, faster, and
culturally familiar. On the other hand, Kenya can formalize and fund community-based
dispute mechanisms so they can relieve pressure on overloaded magistrates' courts.

Professionalize Traditional Leaders

Ghana has Houses of Chiefs and constitutional bodies that regulate traditional leadership and
justice. Here, chiefs must follow codes of conduct, and their rulings can be appealed65. Kenya
can train and regulate elders and mediators in areas like human rights, gender equality, and
procedure without stripping them of cultural authenticity.

Balance Custom and Modern Human Rights

Namibia recognizes traditional authorities but subjects all traditional laws to the Constitution,
especially human rights in fields like gender equality. A lesson for Kenya is to ensure that
while promoting African systems, harmful practices like discrimination or trial without
fairness are firmly checked.

Use Traditional Systems for Restorative Justice

After the genocide, Rwanda used Gacaca courts (traditional community justice) to process
thousands of cases focusing on reconciliation rather than pure punishment66. This can be a
lesson to Kenya in that for community disputes like land, family and minor criminal offenses,
restorative models, a better way of resolving these disputes, rooted in African traditions can
heal relationships rather than escalate conflicts.

CONCLUSION

In Kenya, judicial views regarding Alternative Justice Systems (AJS) are still influenced by
colonial legacies. These systems continue to be sidelined inside the mainstream court system,
in spite of the constitutional recognition of AJS and the legislative initiatives meant to
encourage their inclusion. Courts can often be hesitant to uphold AJS rulings. Although there
are instances where courts have demonstrated a desire to use traditional conflict settlement,

64
Griffiths, A. (1997) In the Shadow of Marriage: Gender and Justice in an African Community
65
Constitution of Ghana (1992) chapter 22
66
Clark, P. (2010) The Gacaca Courts, Post-Genocide Justice and Reconciliation in Rwanda

18
these are infrequent and occasionally overshadowed by worries about the absence of official
codification, openness, and respect for constitutional rights. Because of this, AJS is still
viewed as being less effective than formal litigation, which restricts its ability to be used
more widely in Kenyan courts.

Judicial and policy reforms that close the gap between the codified and alternative justice
systems are vital to Kenya's efforts to create a more inclusive and fair justice system. Firstly,
it is imperative that legal education and judicial training be updated to incorporate a thorough
grasp of AJS.67 Judges and legal professionals need to get training on how to successfully
incorporate community-based dispute resolution methods into the formal legal process, and
legal curriculum should be modified to recognize the validity and benefits of this approach.
This would lessen the colonial prejudice that has influenced court decisions for many years.

For AJS to be applied consistently, a stronger legal framework is necessary. One major
barrier is the absence of formal recognition and standardization of AJS in Kenya's legal
system.68 The function of AJS within the official justice system should be clearly defined by
rules and regulations that address issues of accountability, gender equality, and human rights.
Establishing monitoring procedures and fortifying documentation systems will help increase
AJS's legitimacy and reliability.

Jurisdictions that have effectively incorporated indigenous legal systems into the official
justice system, such as South Africa and New Zealand, offer valuable insights. 69 Kenya can
protect its cultural legacy and guarantee that all residents, irrespective of their socioeconomic
position, have access to justice by following suit.

Although the legislative and constitutional frameworks have made great progress in
acknowledging the importance of AJS, overcoming the colonial legacies that still impede its
integration is necessary to fully realize this promise. Promoting AJS and ensuring that justice
is available, inclusive, and culturally relevant for all Kenyans requires judicial transparency,
policy changes, and capacity-building programs. To ensure that Kenya's justice system
upholds the Constitution's tenets of equity and fairness while reflecting its many traditions,
this process will call for teamwork.

67
Okoth Ogendo, ‘The Tragic African Commons: A Century of Expropriation, Suppression and Subversion’
68
Peter Onyango, ‘African customary law: An introduction’ p5
69
[Link] accessed 26 April 2025

19
Perhaps it is time legal practitioners especially the bench and other stakeholders took up the
challenge by Lord Denning in as he was quoted in Nyali Ltd Vs Attorney General70to assert
the importance of the laws of the far-off land. ‘…In those far off land people must have a
law which they understand and which they will respect. The common law cannot fulfil this
role except with considerable qualifications. The task of making these qualifications is
entrusted to the Judges of these lands. It is a great task which calls for all their wisdom.”

‘Written laws in many African states have not been able to control the actions of those who
continue to support corruption and impunity in law enforcement agencies,’ as noted by Dr.
Peter Onyango. ‘Unlike customary law, written laws do not have the magical ability to force
people to follow and respect them. African scholas have an obligation to evaluate their legal
traditions and apply them to the urgently needed advancement and improvement of living
standards. African customary law serves as a means to an end, which is progressive
reforms.’71

70
Nyali Ltd Vs Attorney General (1956) 1QB1
71
Ibid note 77

20
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23