a)

Kenya's legal system grapples with the concept of the repugnancy clause. This clause acts as a
filter, examining customary law, entailing the traditional practices and laws of Kenyan
communities. If a customary practice is deemed unfair or goes against what most people consider
right by standards of justice and morality, the repugnancy clause can prevent it from being
applied in court. This creates a tension between upholding cultural traditions and ensuring the
legal system treats everyone fairly as discussed below.

The concept of a repugnancy clause might not have a single, universally accepted definition in
every legal system. Rudolph von Mehren defines in his book a repugnancy clause to mean a
provision in a statute or constitution that allows a court to invalidate a rule of customary law that
is found to be inconsistent with the principles of natural justice, equity, and good conscience.1

The foundation for the repugnancy clause is laid in Article 2(3) of the Constitution. This article
establishes the Constitution as the supreme law of the land, declaring any other law, including
customary law, inconsistent with it to be void. This principle serves as the bedrock upon which
the repugnancy clause operates. Customary law practices, while possessing historical
significance and holding value within specific communities, cannot supersede the fundamental
rights and legal principles outlined in the Constitution.

Equally, Article 159 of the Constitution occupies a critical space in the legal system in line with
the repugnancy clause. It deals with the delicate balance between upholding traditional dispute
resolution mechanisms (TDMs) and ensuring they align with the Constitution's core principles.
Embedded within this article is the concept of the repugnancy clause. Article 159(3)(a) prohibits
Traditional Dispute Resolution Mechanisms (TDRMS) from contravening the Bill of Rights,
which safeguards fundamental rights like equality and freedom from discrimination. Article 159
(3)(c) goes ahead to prevent the use of TDMs if they are inconsistent with the Constitution or
any written law. This ensures that customary law practices do not undermine the supreme law of
the land.

1
Rudolf Von Mehren, Comparative Law in a Global Context: The Legal Systems of Asia, Africa and Latin America
(2006), Cambridge University Press
In Re Estate of Monicah Wambui Muturi2, the court struck down a customary law practice
that denied daughters inheritance rights. This decision highlighted the repugnancy clause's role in
ensuring customary law aligns with the Constitution's principle of equality.

Further details regarding the repugnancy clause and its practical application are elaborated upon
in the Judicature Act, Cap 15 Laws of Kenya. Section 3(1)(c) of the Act establishes common law
as a secondary source of law in Kenya, subject to the provisions of the Constitution. This
reinforces the supremacy of the Constitution and its role in rendering customary law practices
inapplicable if they contradict its core principles.

The Judicature Act however delves deeper into the application of customary law in Section 3(2).
This Section stipulates that Customary law shall be applied only in civil cases where one or all of
the parties are persons subject to it and shall not be applied in any case if it is repugnant to
natural justice or morality or inconsistent with any written law. This provision introduces the
concept of repugnancy, which serves as the crux of the repugnancy clause.

The case of Eunice Wangui Njeri v. James Njenga Githua 3 involved a customary law
marriage. The court held that while customary marriages are recognized by law, certain
customary practices within such marriages, like wife battering, would be considered repugnant.
This supports the inference of Section 3 of the Judicature Act, and equally the provisions of
Article 2(4) and 159 of the Constitution of Kenya, 2010.

Repugnancy clause and its implications in Kenya

The implications of the repugnancy clause can be mentioned to be multifaceted, both with
positive and negative implications. This is as discussed below:

 Ensuring procedural fairness

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[2008) eKLR
3
[2014] eKLR
The repugnancy clause promotes fairness within customary dispute resolution mechanisms
(TDMs). Customary law proceedings might sometimes lack formal legal procedures. The
repugnancy clause empowers courts to intervene when these processes lack basic fairness,
ensuring a more just outcome for all parties involved.

The case of James Njiru Ndwiga v. The Registered Trustees of Presbyterian Church of East
Africa4 provides an example of how the repugnancy clause ensured the right to a fair hearing.
Here, the court ruled that a customary land adjudication process violated the right to a fair
hearing due to a lack of transparency and proper notification to all parties involved.

 Championing Equality and Upholding Fundamental Rights

One of the most significant implications of the repugnancy clause is its role in promoting
equality and upholding fundamental rights. Customary law practices have, at times, been
criticized for perpetuating discriminatory practices. The repugnancy clause empowers courts to
strike down such practices, ensuring alignment with the Bill of Rights within the Constitution.

In the landmark case of Re Estate of Monicah Wambui Muturi,5 a customary law practice
denying daughters inheritance rights was struck down. This decision underscored the repugnancy
clause's effectiveness in ensuring customary law aligns with the Constitution's principle of
equality and the protection of human rights.

 Promotion of Justice and Morality

Beyond safeguarding fundamental rights, the repugnancy clause also plays a crucial role in
ensuring customary law practices adhere to basic principles of justice and morality. Practices
deemed barbaric or cruel would be deemed repugnant by the courts. An instance would be efforts
towards combating domestic violence. The case of Eunice Wangui Njeri v. James Njenga

4
[2014] eKLR
5
Succession Cause 302 of 2009
Githua6 exemplifies this principle. While recognizing customary marriages, the court deemed
certain practices within them, like wife battering, repugnant. This highlights the clause's role in
promoting a sense of fairness and decency within customary law.

 Preserving cultural heritage

This implication is mostly a double-edged sword. While promoting equality and justice, the
repugnancy clause can also play a role in safeguarding valuable aspects of cultural heritage.
Courts can distinguish between practices that are inherently harmful and those that hold cultural
significance and can coexist with modern values. In the case of Willy Nga'ng'a v. The
Registered Trustees of Presbyterian Church of East Africa 7, the court acknowledged the
cultural significance of certain customary rituals related to land ownership. While emphasizing
the need for fairness and transparency in customary land adjudication processes, the court did not
deem the entire practice repugnant.

b)

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[2014] eKLR
7
Civil Appeal No. 92 of 2013
Morality plays a complex role in Kenyan legislation. While some moral principles translate well
into legal frameworks, others are better left as social guidelines. The repugnancy clause has
taken a key role in the merging of these two towards the advancement of proper law. This
analysis explores instances where morals inform legislation and situations where codification
might be inappropriate.

Morality as a Foundation for Legislation

Morality can serve as a strong foundation for legislation when it aligns with the following
criteria:

 Protection of Fundamental Rights

Morality, when aligned with core human rights, serves as a moral compass for legislators in
Kenya. The Constitution of Kenya 2010 enshrines these fundamental rights in its Bill of Rights.
Moral principles that resonate with these rights find strong justification for codification into law.
An example is on the right to life and sanctity of the individual. 8 This fundamental right,
enshrined in Article 26(1) of the Constitution, is rooted in the moral principle of respecting
human life. It forms the basis for legislation like the Penal Code (Cap 63 Laws of Kenya), which
criminalizes offenses like murder and manslaughter. Here, morality – the sanctity of life –
underpins a legal framework that protects this fundamental right.

The case of Francis Karioki Muruatetu & Another v. Republic9 abolished the mandatory
death penalty in Kenya. While the death penalty was previously legal, the court recognized its
incompatibility with the right to life and the evolving standards of decency. This case exemplifies
how morality informs the legal framework surrounding fundamental rights.

 Promoting Public Safety and Order

A cornerstone of any well-functioning society is public safety and order. In Kenya, achieving this
requires a legal system that draws upon both codified laws and the bedrock of societal morals.

8
Article 26, Constitution of Kenya 2010
9
Petition 15 and 16 of 2015
Certain moral principles act as pillars of social order, creating a foundation for peaceful
coexistence within Kenyan society. When codified into law, these principles enhance public
safety and empower law enforcement to maintain order.

Respect for property for instance is fundamental. This moral principle translates into legislation.
The Penal Code of Kenya criminalizes theft and vandalism. By protecting individual ownership,
such legislation upholds a sense of order and discourages acts that disrupt public safety. The
moral principle of honesty in commercial dealings forms the basis for legislation like the Law of
Contract Act which establishes frameworks for fair and enforceable agreements. This legal
framework promotes public trust in transactions, contributing to a more stable and secure
economic environment.

In Secretary, Ministry of Gender, Children and Social Development & 5 Others v. Patrick
Njoroge Kamau & 2 Others10, relying on the repugnancy clause under Article 159 and the right
to a child's best interests, the court declared child marriage illegal. This decision demonstrates
how morality, in this case the protection of children, justifies legislation that safeguards public
safety and order.

Morality and its Limits in Legislation

There are however instances where codifying moral principles can be problematic. These include
in cases as described below:

 Subjectivity and Cultural Diversity

Morality can be subjective and vary across cultures. Codifying certain moral principles may
infringe upon the cultural practices of specific communities.

In the case of customary marriages for example, while monogamy may be the prevailing moral
standard for some Kenyans, customary marriages, recognized under Article 159 of the
Constitution, might involve polygamy. Codifying monogamy could undermine these existing
cultural practices. The same can be adduced in cases of Female Genital Mutilation (FGM).
FGM, a practice deeply rooted in some Kenyan communities, is considered a harmful traditional

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[2014] eKLR
practice by others. In In the Matter of Francisca v. The Republic11, the court declared FGM a
violation of fundamental rights, demonstrating the delicate balance between respecting cultural
practices and upholding universal moral principles.

 Enforcement Challenges

Certain moral principles are inherently difficult to translate into legally actionable offenses due
to the complexities of proof. Legislation based on such principles can become challenging to
enforce effectively. An example would be in the case of honesty. Honesty, a cornerstone of
morality, forms the basis for principles like fair dealing and good faith in contracts. However,
codifying honesty into specific legislation, like the Law of Contracts Act, presents difficulties.
Proving dishonesty in many commercial transactions can be a complex and resource-intensive
endeavor.

 Statutory Provisions and Ambiguity:

This may limit the inclusion of morality in the making of law. The Penal Code, Cap 63 Laws of
Kenya, exemplifies the challenge of ambiguity in legislation based on moral principles. Terms
like "cruelty" or "indecent behavior" within the code lack precise definitions, making
enforcement subjective and potentially inconsistent. An example would be in the case of
nuisance. The offense of public nuisance12 relies on the subjective concept of "annoyance." This
ambiguity makes it challenging for law enforcement to consistently determine and enforce what
constitutes a public nuisance.

Moral standards

The conventions we have regarding the kinds of behavior we consider to be ethically acceptable
and inappropriate are referred to as moral standards. Moral standards, in particular, address
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[2018] eKLR
12
Section 137, Penal Code of Kenya.
issues that have the potential to gravely hurt or benefit people. The moral norms that Kenyans
uphold have an impact on how morality and law coexist.

 Sincerity and prudence

These are essential to a civilization that runs well. The moral need to oppose corruption and
advance moral behavior is reflected in laws such as the Anti-Corruption and Economic Crimes
Act (2003). The administration of justice in court depends significantly on the true testimony of
witnesses, victims, and even the accused. Honesty is a fundamental value, and laws against
perjury and evidence tampering work toward ensuring this.

 Honoring customs and practices

In Kenya, honoring tradition is a fundamental moral principle. Respecting tradition has the
benefit of preserving cultural identity, which improves moral continuity and social cohesiveness.
To ensure that the legislation is followed, a narrow line should be drawn. Respecting heritage and
advancing progress however should be balanced in a good legal and moral framework.

 Honoring life

The Constitution reflects this moral precept. Every Kenyan has the right to life, according to
Article 26 of the constitution, and no one may be deprived of this right unless the constitution
specifically permits it. This stance was upheld in the Francis Karioko Muruatetu and Others
v. Republic case, when the court considered the legitimacy of the death penalty while properly
balancing morality and the law. Laws that punish crimes like murder and manslaughter, such as
Kenya's Penal Code, also uphold the moral standard of respect for human life.

 Humanity
Humanity is essential to a civilization that runs well. The moral need to oppose corruption and
advance moral behavior is reflected in laws such as the Anti-Corruption and Economic Crimes
Act of 2003. The administration of justice in court depends significantly on the true testimony of
witnesses, victims, and even the accused. Honesty is a fundamental value, and laws against
perjury and evidence tampering work toward ensuring this.

In conclusion, the repugnancy clause guarantees that laws respect fundamental rights and are
consistent with core values. Although morality can be a crucial source for legislation, protecting
individual rights, navigating cultural diversity, and ensuring clear and enforceable regulations all
require careful attention when translating morality into legislation. This subtle strategy helps to
create a balance between moral values and the laws that support a fair and just society in Kenya.