SOAS Research Online

Abstract

The objective of this thesis is to understand the judicial process in the primary courts of Kenya. The first chapter is a synthetic essay which explains how I originally framed the questions to be asked, how I came to change those questions, how I conducted the research, and how the succeeding chapters were written. The second chapter presents my research method, and seeks to justify it. I then offer an exposition of the judicial system of Kenya, and turn to an analysis of cases handled by the primary courts of that system. I place the analysis of specific cases in perspective by means of a statistical study of behavior in the primary courts. Finally, I offer comparative data on judicial process in the appellate hierarchy, and on the dispute process outside of the official court structure. In the third chapter, I build upon this exposition with an attempt to construct a theory of the dispute process which will explain what I have observed in the institutions of Kenya, as well as what has been described for dispute processes elsewhere. After locating my endeavor within the traditions, and contemporary literature, of legal and social scientific scholarship, I offer two theories. The first, a microsocial theory, explains process in dispute institutions (of which the primary courts of Kenya are an example) in terms of the structure of those institutions, using such variables as specialization, differentiation, and bureaucratization. The second, a macrosocial theory, explains the variety of dispute institutions we may expect to find in a society such as Kenya, and offers some tentative predictions about the future of those institutions. Chapter four contains a comprehensive bibliography of published and unpublished materials concerning the customary law of Kenya. The appendix consists of published articles and reviews on African law and the social theory of law.