Legal Pluralism Research Paper

|

CHAPTER 2

2.0 INTRODUCTION

This chapter, based on the theory of legal pluralism, will expound on the provision for registration of customary marriage in Kenya. I will first expound how the theory of legal pluralism is related to customary law. I will then look at the essentials of a valid customary marriage that were in place before the requirement of registration. After that i will look at the place of Customary marriages before the position for registration was enacted. I will then look at how the provision for customary marriages was enacted. Finally i will look at the position of customary marriages after the provision for registration was enacted.This study is to show whether the provision was necessary to be included in Kenya’s new

These sates are battling with ways of preserving their customs and culture as they follow the modern laws that were introduced to them. Most of these countries’ constitution recognize customary law and they preserve a role for the customary law as they are aware that legal pluralism in the state cannot be avoided. A few of these states however have found a way of implementing the legal pluralism thus establishing a relationship between the laws. For example, in Kenya, Section 3 (2) of the Judicature Act states that “the High Court, the Court of Appeal and all subordinate courts shall be guided by African customary law in civil cases in which one or more of the parties is subject to it or affected by it, so far as it is applicable and is not repugnant to justice and morality or inconsistent with any written law, and shall decide all such cases according to substantial justice without undue regard to technicalities of procedure and without undue

There were changes to customary law as it was now recognized as a serious union and added to the modern law. Customary marriages had their own regulations but with this changes it was incorporated to the modern law. I will point out some of the provisions in relation to customary marriages that are in accordance with the new marriage act.

The Marriage Act provides that “a marriage may be registered under this Act if it is celebrated in accordance with the customary rites relating to any of the communities in Kenya.” This is the new provision that was enacted that would bring about changes to the customary marriage in Kenya.

“The Cabinet Secretary may, by notice in the Gazette, declare any area of Kenya to be a registration area for the purposes of this Act.” It also adds that a marriage celebrated under customary law or Islamic law is presumed to be polygamous or potentially polygamous.

This means the rural areas that were never considered before for registration would then be considered as registration centers for the people to access. This is left for the cabinet secretary to determine the