Legal pluralism in Kenya : a study of Tugen-Arror customary family law.
This thesis looks at legal pluralisln in fatnily law. Its Inain concern can be
divided into two: the extent of co-existence of indigenous customary family law in a
Kenyan society on one hand, and state law (principles and rules) regulating family
relations, on the other. This study was based on the Tugen-Arror ethnic community in
the Rift Valley Province. One among the 43 ethnic groups found in Kenya; a country
colonised by Britain from 1895 to 1963. This left a legal structure which is pluralistic
in nature. Nothing confirms this more than the sources of law, the institutions and
procedures that exist today. As indicated in this thesis, the sources of law in Kenya
can be divided into two main categories: First and foremost, those referred in the
thesis as 'inherited' or 'official' state laws which were at first introduced during the
colonial rule and later through the post-colonial legal institutions. Secondly, those
referred in here as 'indigenous' or 'customary law'. These are custolnary 'legal'
norms representing the many ethnic communities in Kenya.
The aim of the dissertation, therefore, concerns the implications of legal
plurality, the co-existence of different legal principles, institutions and processes all
interconnected with the various sources of law, on the general operation of customary
family law in Kenya. This co-existence of diverse competing legal systen1s,
institutions and processes creates an inevitable conflicting situation. This is nowhere
better observed than in the rules and processes connected with customary family
relations; particularly in marriage, brideprice, divorce and issues pertaining to parentchild
relations (adoption, guardianship and fosterage). In the process of discussing
these customary family related matters under the auspices of Tugen-Arror customary
law, the different facets of customary and family rules, behaviours, relationships and likewise principles, rules and relations under state law are highlighted. The reason for
doing so is to try and reveal the different aspects of Tugen-Arror customary practices
that differ from those observed in other communities.
The dissertation therefore, focuses mainly on the customary practices of the
Tugen-Arror community, at a period of social, economic and political change exerted
by forces unrelated to their traditional past, values and aspirations deeply entrenched
and in which any social change taking place does so with the interest of the wider
family at its core.