Re-examining Burial Disputes in Kenyan Courts through the Lenses of Legal Pluralism

Abstract

This paper starts by exploring the place of customary law in socio-legal studies. It examines the different criticisms levelled against customary law and argues that although customary law is considered not to have the features of formal legal systems, the said comparison is unjustified as customary law and formal state law originate from different foundations. The second part of this paper highlights the contemporary theoretical discourse on legal pluralism. It responds to scholarly criticism of legal pluralism and traces the historical development of the concept. Using landmark burial disputes in Kenya, the paper examines the use of customary law in Kenyan courts. It identifies the inconsistencies and absurdities that result from the use of common law principles in the resolution of customary law disputes and advocates for the government to embrace non-state justice systems in resolving burial disputes.