What is the validity of customary law?
Validity of customary law Section 18(3) of the evidence act 2011 provides that in any judicial proceeding where any custom is relied upon, it shall not be enforced if it is contrary to public policy or is not in accordance with natural justice, equity and good conscience.
How can a court ascertain the existence of customary law?
The proof of customary law in court is governed by the copious provision of Section 16 of the Evidence Act 2011. The summary of the Act therefore is a customary law can either be proved by direct evidence to establish its existence or by established judicial notice.
When can a court take judicial notice of customary law?
(1) Any court may take judicial notice of the law of a foreign state and of indigenous law in so far as such law can be ascertained readily and with sufficient certainty: Provided that indigenous law shall not be opposed to the principles of public policy and natural justice: Provided further that it shall not be …
What are the two elements of customary law?
The two essential elements of customary international law are state practice and opinio juris, as confirmed by the International Court of Justice in the Legality of the Threat or Use of Nuclear Weapons.
Is customary law legally binding?
The Constitution says that customary law is protected, but the rules of customary law must be in line with the principles in the Bill of Rights. The Bill of Rights protects the right to culture. But it also protects the right to equality and non-discrimination, and the right to dignity.
In what circumstances is the customary law applicable in Kenyan courts?
Customary law is a body of customs and traditions which regulate various kinds of relationships between members in a community. Customary laws are said to be applicable to the extent that they are not repugnant to justice, morality or any other written law.
What section of the Evidence Act defines customary law?
But there is even a bigger peril confronting customary law. Section 18(3) of the Evidence Act stipulates that in any judicial proceeding where any custom is relied upon, it shall not be enforced as law if it is contrary to public policy, or is not in accordance with natural justice, equity and good conscience.
What is mandatory judicial notice?
Judicial notice is a rule in the law of evidence that allows a fact to be introduced into evidence if the truth of that fact is so notorious or well known, or so authoritatively attested, that it cannot reasonably be doubted.
What are the basic principles of customary law?
Examples of these general principles of law are laches, good faith, res judicata, and the impartiality of judges. International tribunals rely on these principles when they cannot find authority in other sources of international law.
What is customary law Kenya?
Customary law is recognized as one of the sources of Kenya’s laws where it is designated “African customary law.” Custom is the oldest source of law in Africa. It generated the body of law that governed the native African communities in pre-colonial Africa.
What is the place of African customary law in Kenya?
African customary law is used as a guide in civil cases affecting people of the same ethnic group so long as this does not conflict with statutory law. There are currently four types of courts in Kenya: resident and district magistrate courts, senior resident and chief magistrate courts High court and the court appeal.
What documents can be judicially noticed?
The prevailing rule permits courts to take judicial notice of court records, including of prior judgments, orders, and decisions, but generally forbids courts from taking judicial notice of the facts contained in those records or of the factual findings on which those decisions are based.
Can a judge allow a witness without advance notice?
And whether it is necessary to give advance notice to witnesses before taking any further step? You can pray the court to conduct enquiry u/s 202 cr. p.c. The court can summon the witnesses under this stage. If the witnesses are under your control, you can take them to the court.
What is the role of customary law?
Customary law gives different treatment to family members depending on their status in the family and their gender. It also protects the social position of men. These rules of customary law will need to be measured against the rights of women to equality and dignity, to see if they are constitutional.
What is the purpose of customary law?
Customary international law consists of rules that come from “a general practice accepted as law” and exist independent of treaty law. Customary IHL is of crucial importance in today’s armed conflicts because it fills gaps left by treaty law and so strengthens the protection offered to victims.
Which facts need not be proved before the court?
Facts which are judicially noticeable need not be proven. According to Section 56 of the Indian Evidence Act, 1872, the facts of which the Court will take judicial notice need not be proved. Simply put, any judicially noticeable fact does not require to be proven before the Court.
Can a judge call a witness to the stand?
(a) Calling. The court may call a witness on its own or at a party’s request. Each party is entitled to cross-examine the witness.