“Is it opportune to “Kenyanize” our laws?”
Kenya has been an independent Nation for over 61 years and it is over 104 years since the country was formally colonized in 1920 when the British Government declared it a Crown Colony and Colonial rule lasted until 12th December, 1963
The British Government had in 1895 declared Kenya a Protectorate under the administration of the Imperial British East Africa Company (IBEAC) in 1895.
One of the sources of Kenyan law includes colonial laws that were adopted and inherited at independence, as well as laws enacted under the first Constitution and its subsequent amendments. This source is recognized in law as the ‘Doctrine of Eclipse.’
Another source is all English Statutes in force in England as at 12th August, 1897 (called the “Date of Reception”). An example is the Foreign Tribunals Evidence Act 1856 which is expressly applied in Kenya by the Judicature Act, Chapter 8 of the Laws of Kenya)
The English Common Law (made up of ancient customs and practices of England) has been recognized and given the force of law, as well as the Doctrines of Equity (fairness) developed by the English courts to remedy the defects of the common law.
The Law of Tort (civil wrongs) is also derived from English Common Law and Doctrines of Equity as received from the Date of Reception under the Judicature Act (the Constitution, Statutes, Judicial decisions and even African Customary law impacts laws of torts)
Contract Law is also applicable by common law, and same specific English legislation (for example UK’s Contracts (Rights of Third Parties) Act 1999 for example is applicable)
Additionally, there are some Indian laws applicable in the country.
An important step towards Kenyanizing the Kenyan Criminal Law received an impetus by virtue of the Criminal Law (Amendment) Act, (Act No.5 of 2003) when then Section 3 of the then Penal Code was repealed – Section 3 had read:-
“3. This Code shall be interpreted in accordance with the principles of legal interpretation obtaining in England, and expressions used in it shall be presumed, so far as is consistent with their context and except as may be otherwise expressly provided, to be used with the meaning attaching to them in English criminal law and shall be construed in accordance therewith”
Though practitioners have not caught up with this development, the fact of the matter is that many pre-2003 precedents are inapplicable, or have been rendered obsolete.
Our Criminal law, however, remains embroiled in the old English customs and values, and slowly and steadily there are changes which are taking place. An example is the recent decision in the case of Kenya National Commission on Human Rights & 2 others v Attorney General; Director of Public Prosecutions & 3 others (Interested Parties); Law Society of Kenya (Amicus Curiae) [2025] KEHC 6 (KLR) in which Section 226 of the Penal Code relating to suicide was declared unconstitutional.
Perhaps we must take a page out of the Indian experience. The Indian Penal Code has recently been “Indianized” by Bharatiya Nyaya Sanhita (BNS) 2023 as have the Criminal Procedure Code and the Evidence Act.
The Indians have replaced all colonial terminology, changed laws relating to National Security, new laws introduced such as mob lynching, terrorism and organized crime, digital and cybercrimes introduced, and victim – centric reforms made.
The reforms aim to make Indian criminal laws more relevant to Indian Society removing out dated colonial concepts and addressing modern legal changes. Shall we follow the Indian course?
Our Criminal Procedure Code still has English laws applicable. Section 143(2), when dealing with offences by Foreigners within Territorial Waters, states:-
“In this section “Offence” means an act, neglect or default of such a description as would, if committed in England, be punishable on indictment according to the law of England for the time being in force”
The Interpretation and General Provision Act, Chapter 2 of the Laws of Kenya still talks of “Crown Agents”, “British Protected Person”, “common law” which means so much of common law including doctrines of equity of England has effect for the time being in Kenya.
Since 9th December, 1923 the Evidence Act, 1872 (No.1 of 1872) of India ceased to apply in Kenya but the Judicature Act recognizes the application of English mercantile law.
The Law Reform Commission and Members of Parliament must address this issue. While a wholesale overhaul of the laws may not be possible, steps must be taken to Kenyanize our legal framework.
By Pravin Bowry, S.C
Lawbilamaneno 
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