Angela Gitahi (McGill University) has posted Legal Pluralism in Kenya on SSRN. Here is the abstract:
This paper explores the reality of legal pluralism in Kenya, emphasizing how multiple legal systems coexist, interact, and sometimes clash in practice. Drawing on legal theory, court decisions, and casework from the ELIMU Legal Aid Clinic, it examines how access to justice is mediated through both formal and informal mechanisms, particularly in rural areas. The paper situates Kenya’s legal system within global debates on strong versus weak legal pluralism and highlights the state's attempt to institutionalize non-state legal orders through constitutional and statutory recognition. It critically reflects on the hierarchical nature of Kenya’s legal framework and the role of judges in filtering customary law through principles of justice, morality, and equality. Furthermore, it applies Anthony Diala’s theory of adaptive legal pluralism to analyze Kenya’s 2020 Alternative Justice Systems (AJS) Framework as a model for integrating traditional dispute resolution within a modern legal landscape. The study concludes that meaningful justice in pluralistic societies requires not only recognition but also thoughtful regulation of non-state systems to uphold constitutional values while honoring community legitimacy.
