Protecting Traditional Knowledge in Kenya Through African Customary Law - An Analysis of Inclusive Subordination

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Electronic Theses and Dissertations
2019
Protecting traditional knowledge in Kenya through

African Customary Law: an analysis of inclusive
subordination
Claude K. Mwangi
Strathmore Law School (SLS)
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Protecting Traditional Knowledge in Kenya through African Customary Law: An Analysis
of Inclusive Subordination
Mwangi Claude Kamau
Submitted in Partial Fulfilment of the Requirements for the Degree of Master of Laws at
Strathmore Law School
Nairobi, Kenya
June, 2019
This thesis is available for Library use on the understanding that it is copyright material and that
no quotation from the thesis may be published without proper acknowledgment.
I
DECLARATION
I declare that this work has not been previously submitted and approved for the award of a degree
by this or any other University. To the best of my knowledge and belief, the thesis contains no
material previously published or written by any other person except when due reference is made
in the thesis itself.
© No part of this thesis may be reproduced without the permission of the author or Strathmore
University.
CLAUDE KAMAU
……………………
Approval
The thesis of CLAUDE KAMAU was reviewed and approved by the following:
Dr. Robert Muthuri,
Senior Lecturer, Strathmore Law School
Dr. Luis Franceschi,
Dean, Strathmore Law School
Professor Ruth Kiraka,
Dean, Strathmore Law School,
II
ABSTRACT
Traditional knowledge as an intellectual resource has in recent decades gained increased legal
recognition as a proprietary entitlement of indigenous and local communities. It forms the fabric
of their social, economic and, sometimes, religious life.
Human rights law and intellectual property law have variously constituted regimes for the
protection of traditional knowledge as a traditional right, but they have both, arguably, done a sub-
optimal job. The basic reason for this failure has been the general incompatibility of traditional
knowledge systems and conventional legal tools especially those under intellectual property law.
Whilst it is recognised that there are many meaningful overlaps between conventional intellectual
property forms and traditional knowledge, it goes without saying that there are significant
departures made by the latter which would demand a more carefully calibrated scheme of
protection.
There is now wide consensus in literature that a unique (sui generis) regime of law should be
employed to regulate traditional knowledge rights and to protect traditional knowledge. On this
point, it is possible to locate customary laws as an integral cog in the wheel of such protection,
going by the nature of creation, use and transmission of traditional knowledge, which is within a
communal setting for transgenerational purposes.
Adequate protection of traditional knowledge would thus require a robust scheme of customary
law (and in the case of Kenya, African Customary Law) to form the normative and institutional
foundation for protecting traditional knowledge.
The history of application of African Customary Law in Kenya is fraught with a systemic legal
technique whose effect is to subjugate African Customary Law even where it is the appropriate
defining regimen. This trend is apparent from statutory instruments and, most explicitly, in judicial
decisions.
An analysis of the legal environment surrounding traditional knowledge in Kenya suggests that
the expressed legislative intent to protect traditional knowledge through African Customary Law
is likely to yield no positive results. Inclusive subordination of African Customary Law, as long
as it remains a reality in the Kenyan legal system, will stand in the way of any efforts to
meaningfully protect traditional knowledge.
III
TABLE OF CONTENTS
DECLARATION ................................................................................................................... II
CHAPTER ONE ................................................................................................................... 1
1.1 Background to the Study .................................................................................................. 1
1.2 Background to the Problem ......................................................................................... 3
1.3 Statement of the Problem ................................................................................................ 6
1.4 Justification of the Study ................................................................................................ 7
1.5 Research Questions ........................................................................................................ 8
1.6 Hypotheses ..................................................................................................................... 9
1.7 Literature Review .......................................................................................................... 10
(I) Traditional Knowledge and Customary Law ................................................................... 10
(II) The Impact of Inclusive Subordination on Customary Law ............................................. 12
1.8 Conceptual Framework ................................................................................................ 15
(I) Sui Generis Regimes as the Ideal Protection Regime for Traditional Knowledge Systems15
(II) The “Inclusive Subordination” of African Customary Law ............................................. 17
1.91 Research Methodology ................................................................................................. 18
1.92 Limitations .................................................................................................................. 19
1.93 Chapter Breakdown ..................................................................................................... 19
CHAPTER TWO ................................................................................................................. 21
2.1 Introduction .......................................................................................................................... 21
2.2 The Existing Legal Framework ............................................................................................. 21
2.3 Sui Generis and Other Approaches in Protection of Traditional Knowledge in Kenya .... 22
2.4 Various Sui Generis Approaches...................................................................................... 24
(I) Human Rights Law ..............................................................................................................................24
(II) Information Communication Technology and Related Tools ..........................................................25
(III) African Customary Law ......................................................................................................................28
2.5 Conclusion ............................................................................................................................. 32

CHAPTER THREE............................................................................................................. 34
3.1 Introduction .......................................................................................................................... 34
IV
3.2 Application of African Customary Law to Personal Law Regimes in Kenya ......................... 34
(I) Seduction or Pregnancy of an Unmarried Woman or Girl ..............................................................36
(II) Essentials of Marriage .........................................................................................................................40
3.3 Conclusion ............................................................................................................................. 44
CHAPTER FOUR ............................................................................................................... 46
4.1 Introduction .......................................................................................................................... 46
4.2 African Customary Law and Traditional Knowledge ............................................................ 46
4.3 Illegitimate Legislative Interventions in Kenya Relating to Traditional Knowledge .............. 47
4.4 Other Legislative Failures Relating to Traditional Knowledge .............................................. 51
4.5 Inclusive Subordination and Traditional Knowledge ............................................................. 52
(I) Reduced Exercise of Collective Rights ...............................................................................................52
(II) Diminished Role of Community Adjudication Structures ...............................................................53
4.6 Conclusion ............................................................................................................................. 55

CHAPTER FIVE ................................................................................................................ 57
5.1 Introduction .......................................................................................................................... 57
5.2 Findings ................................................................................................................................. 57
5.3 Recommendations ................................................................................................................. 59
5.4 Conclusion ............................................................................................................................. 60
BIBLIOGRAPHY................................................................................................................ 61
V
LIST OF STATUTES
1. Marriage Act, No. 4 of 2014.
2. Protection of Traditional Knowledge and Cultural Expressions Act, No 33 of 2016.
3. Judicature Act, Chapter 8, Laws of Kenya, (Revised Edition 2016).
VI
LIST OF CASES
1. George Mwangi -Vs- Maria Wamugori, Court of Review Case No. 14 of 1965
2. Githirwa Muoya -Vs- Njeri Kamau, Court of Review Case No. 8 of 1965.
3. Gwao bin Kilimo v Kisunda bin Ifuti, 91938) 1 T.L.R. (R) 403.
4. Hortensiah Wanjiku Yawe -Vs- Public Trustee, Court of Appeal for East Africa, Civil
Appeal No. 13 of 1976.
5. JMK v DMK, Civil Appeal No. 7 of 2013.
6. Murichu Ichurua -Vs- Sammy Kuria s/o Chege Githinji, Resident Magistrate’s Court at
Thika, Civil Appeal No. 7 of 1980.
7. Rex v Amkeyo, (1917) 7 E.A.L.R. (Kenya).
VII
LIST OF ABBREVIATIONS
1. KECOBO – Kenya Copyright Board
2. TRIPS – Trade Related Aspects of Intellectual Property Rights Agreement
3. UNDRIP – United Nations Declaration on the Rights of Indigenous Peoples
4. WIPO – World Intellectual Property Organisation
VIII
ACKNOWLEDGEMENTS
I would like to thank my supervisor Dr. Robert Muthuri for his support and guidance throughout
the entire research project, and his technical brilliance which was instrumental for the completion
of this work. I remain ever in debt to Mr. Francis Kariuki, for planting the foundational seeds of
the themes forming the spine of this work in my mind, during my years as his undergraduate law
student, and later as his colleague and mentee at the Strathmore Law School. I am further grateful
to Annah Njambi and Regina Njeri, for their advice and ready help during the harder times.
IX
CHAPTER ONE
INTRODUCTION
1.1 Background to the Study

It is a concern of both contemporary intellectual property law and human rights law to protect the
proprietary value inherent in creations and various heritages of indigenous and marginalised
communities. Traditional knowledge systems have emerged as an important arena where the value
created by these communities is visible to the wider world. If the regimes of human rights law and
intellectual property law are to be taken seriously, they must respond to an ever-growing concern
that traditional knowledge1 is not, at present, adequately protected. The concern is that this
situation has led to the disenfranchisement of traditional peoples.
‘Traditional’ peoples are those who hold an unwritten body of long-standing customs, beliefs,
practices and rituals that have been handed down from previous generations. They do not
necessarily have claim of prior territorial occupancy or indigeneity to the current habitat. Thus,
traditional peoples are not necessarily indigenous even though indigenous peoples could be
traditional.2
It follows that indigenous knowledge is “that knowledge that is held and used by a people who
identify themselves as indigenous to a place based on a combination of cultural distinctiveness and
prior territorial occupancy relative to a more recently-arrived population with its own distinct and
subsequently dominant culture.”3 Traditional knowledge, then, would be that knowledge “which
is held by members of a distinct culture or sometimes acquired by means of inquiry peculiar to
that culture, and concerning the culture itself or the local environment in which it exists.”4
Traditional knowledge can thus be considered to be the totality of all knowledge and practices,
1
In this study, the term “traditional knowledge” will presume to also represent “traditional cultural expressions”, as
there is, according to the author, no major differences producing a fundamental doctrinal division between the two.
2
Mugabe J, Intellectual property protection and indigenous knowledge: An exploration in international policy
discourse, African Centre for Technology Studies, Nairobi, 1999, 2.
3
See Mugabe J, Intellectual property protection and indigenous knowledge: An exploration in international policy
discourse, 2-3.
4
discourse, 3.
1
whether explicit or implicit, collectively used in the management of socio-economic and ecological
facets of life, established on past experiences and observation.5
Traditional knowledge is dynamic in nature and changes its character as the needs of the people
change, and it gains vitality from being entrenched in people’s lives. Examples of traditional
knowledge include knowledge about the use of the specific plants and/or parts thereof,
identification of medicinal properties in plants and harvesting practices.6 This is the essential
component of what has been termed as ‘traditional medical knowledge’. ‘Traditional medicine’
includes a diversity of health practices, approaches, knowledge, and beliefs incorporating plant,
animal and/or mineral-based medicines; spiritual therapies; manual techniques, and exercises.7
‘Traditional’ can be taken to refer not to the antiquity of the knowledge but to the manner in which
it is transmitted.8
In this study, “African customary law” is used to mean:
“rules of custom, morality, and religion that the indigenous people of a given locality view as
enforceable either by the central political system or authority, in the case of very serious forms of
misconduct, or by the various social units such as the family…”9
A ‘custom’ in the common law tradition is defined as “a particular rule which has existed either
actually or presumptively from time immemorial, and has obtained the force of law in a particular
locality, although contrary to, or not consistent with the common law of the realm.”10 It is also
conceivable that a custom could be complementary to the common law. In fact, the common law
of England is known to be embodied in English custom.11 To be valid it must be immemorial;
secondly, it must be reasonable; thirdly, it must have continued without interruption since its
5
discourse, 3.
6
discourse, 4.
7
WHO , Legal status of traditional medicine and complementary/alternative medicine: A worldwide review, Geneva:,
2001, 1-2.
8
Correa CM , Protection and promotion of traditional medicine – implications for public health in developing
countries, Geneva, 2002, cited in Deisser A and Njuguna M, Conservation of natural and cultural heritage in Kenya:
A cross-disciplinary approach, UCL Press, 2016, 45-46.
9
Ocran M, ‘The clash of legal cultures: the treatment of indigenous law in colonial and post-colonial Africa’, Akron
Law Review, 2006, 467-468.
10
10 Halsbury, 2Ed, 2.
11
Walker R, The English legal system, 4Ed, Butterworths, London, 1976, 3.
2
immemorial origin; and, fourthly, it must be certain in respect of its nature generally, as well as in
respect of the locality where it is alleged to obtain, and the persons whom it is alleged to affect. 12
Relatedly, the definition of customary law might be so wide as to include any unenacted law which
by custom is followed by a given community.13
1.2 Background to the Problem

Generally, traditional knowledge as a branch of intellectual property poses unique challenges in
terms of its regulatory framework. Sui generis (stand-alone) mechanisms, as will be seen in detail
below, are an essential regulatory framework in this area. This is mainly because this type of
knowledge does not fit into the existing intellectual property paradigm due to the need for
protection in perpetuity in accordance with cultural norms, the difficulty in identifying the ‘author’
or ‘creator’ of the knowledge, and the failure of conventional intellectual property to recognise
communal rights over that knowledge.14 The simple basis for this, therefore, is that traditional
knowledge cannot be attributed to a particular owner (author/creator/inventor), it is dynamic
(evolving over time), and it is often inextricably bound with the culture of communities.
The reality is that indigenous and local communities are largely the custodians15 of traditional
knowledge. They have systems of customs and taboos in place to ensure that certain traditional
knowledge is not made widely known, while at the same time ensuring it is preserved and passed
on from one generation to the next within the indigenous and local communities. In the case of
traditional medicine, for instance, specific families or persons, such as the Olaibon among the
Maasai, hold this knowledge and put it into practice.16
12
10 Halsbury, 2Ed, 6.
13
Allott A, New essays in African Law, Butterworths, London, 1970, 157.
14
Stoianoff n, ‘A governance framework for indigenous ecological knowledge protection and use’, in Levy R, O’Brien
M, Rice S, Ridge P, Thornton M (Eds), New directions for law in Australia: Essays in contemporary law reform,
ANU Press, 2017, 236.
15
Under Section 2 of the Protection of Traditional Knowledge and Cultural Expressions Act, for instance, references
to an “owner” mean local and traditional communities, and recognised individuals or organisations within such
communities in whom the custody or protection of traditional knowledge and cultural expressions are entrusted in
accordance with the customary law and practices of that community. References to a “holder” means recognised
individuals or organisations within communities in whom the custody or protection of traditional knowledge and
cultural expressions are entrusted in accordance with the customary law and practices of that community.
16
Ouma M, ‘The policy context for a commons approach to traditional knowledge in Kenya’ in de Beer J, Armstrong
C, Oguamanam C & Schonwetter T (eds.) Innovation & Intellectual Property: Collaborative Dynamics in Africa,
2014, 133.
3
At the least, there is an absence of consensus on whether and how to extend intellectual property
protection to traditional knowledge in general.17 This is partly because of differences in conceptual
treatment and often, the lack of clarity on the two concepts. 18 In any case, it should be clear that
traditional knowledge is communal property, which under intellectual property law would be
privatised, and this may deny future generations and industry access to such knowledge. 19
The Kenyan State has a duty to promote all forms of national cultural expression, to recognize the
role of indigenous technologies in development and to promote the protection of intellectual
property rights.20 In addition, the State has to support, promote and protect the IP rights of the
people of Kenya,21 while at the same time also providing for the sustainable management and use
of natural resources, and for protection of biodiversity and genetic resources.22
The Constitution of Kenya, 2010 (“the Constitution”) provides a potentially strong framework for
the creation of enabling policies to ensure that benefits of traditional knowledge accrue to
indigenous local communities, and to promote access and preservation of traditional knowledge
for the sustainability of indigenous local communities. The Constitution specifically defines
property to include intellectual property.23 The Constitution also recognizes culture as the
foundation of the nation and as the cumulative civilisation of the Kenyan people and state.24
Kenyan laws provide for the applicability of African customary law to their subject matter in
various ways. The Constitution provides that “any law, including customary law, that is
inconsistent with this Constitution is void to the extent of the inconsistency…”25 In delimiting the
principles to guide the exercise of judicial authority, the Constitution provides that “traditional
dispute mechanisms shall not be used in a way that- (a) contravenes the Bill of Rights; (b) is
17
discourse, 8.
18
discourse, 8.
19
discourse, 8.
20
Article 11(2), Constitution of Kenya (2010).
21
22
Article 69(1)(c), Constitution of Kenya (2010).
23
Article 260, Constitution of Kenya (2010).
24
25
4
repugnant to justice and morality or results in outcomes that are repugnant to justice and morality;
or (c) is inconsistent with the Constitution or any written law.26
Perhaps the most consequential formulation of the idea of inclusive subordination can be seen in
the wording of the Judicature Act27 of which two sections will be considered. The Judicature Act
makes provision for the jurisdiction of courts of law in Kenya. Contrast the following provisions
of the Act.
The first provision is that the jurisdiction of the courts shall be exercised:
“in conformity with the Constitution; subject thereto, all other written laws, including Acts
of Parliament of the United Kingdom cited… subject thereto and so far as those written
laws do not extend or apply, the substance of the common law, the doctrines of equity and
the statutes of general application in force in England… Provided that the said common
law, doctrines of equity and statutes of general application shall apply so far only as the
circumstances of Kenya and its inhabitants permit and subject to such qualifications as
those circumstances may render necessary.”
The second provision provides that the courts:
“shall be guided by African customary law in civil cases in which one or more of the parties
is subject to it or affected by it, so far as it is applicable and is not repugnant to justice and
morality or inconsistent with any written law, and shall decide all such cases according to
substantial justice without undue regard to technicalities of procedure and without undue
delay.”
It immediately becomes clear that these two positions embody very different ways of viewing the
desirability (or implicit preference) of a regime of law. It is contended that the idea of viewing law
as engendered by the latter formulation contributes to a systemic lack of commitment to, the
“inclusive subordination” of,28 customary law as a regime of law. The mere choice of the word
26
Article 159 (3) (b), Constitution of Kenya (2010).
27
Judicature Act, Chapter 8, Laws of Kenya, (Revised Edition 2016).
28
This phrase was first encountered in the work of Prof. Sylvia Kang’ara, describing the legal technique through
which African customary law was formally accepted but its application heavily qualified. See Kang’ara S, ‘Beyond
bed and bread: The making of the African state through marriage law reform – constitutive and transformative
influences of Anglo-American legal thought’, 9 Hastings Race and Poverty Law Journal, 353-396, 362.
5
“repugnant” reveals the presupposition of an almost-expected appalling or reprehensible character
possessed by the thing being described.
Commentators have noted that legal and policy instruments in the area of traditional knowledge
should seek to enhance communal approaches to traditional knowledge protection and
management.29 In recognition of these complexities, the recently-enacted law, The Protection of
Traditional Knowledge and Cultural Expressions Act (“the Act”)30 has made extensive references
to African customary law as the operative regime in some key aspects of regulation of traditional
knowledge. The Act is aimed at creating an appropriate sui generis mechanism for the protection
of traditional knowledge and cultural expressions which gives effect to the constitutional
provisions discussed above.31
In Kenya, African customary law is referenced severally as a source of law, but is, nevertheless,
implicitly subjugated to other regimes of law, mainly statutory law and common law, notably
under Section 3 of the Judicature Act. Historically, in Kenya, this ‘inclusive subordination’ of
African customary law has had visible corrosive effects on other regimes previously organized
under customary law norms, as will be seen shortly. The retention of laws that imply the inherent
inferiority of African customary law, might impede the Act’s effectiveness to protect and manage
traditional knowledge sufficiently.
This study aims to demonstrate that the full thrust of the project to properly operationalize the Act
does not lie with this new law itself. In fact, as will be hypothesized, the effectiveness of the
existing or anticipated provisions regarding African customary law will ultimately hinge on the
relative treatment of customary law within the Kenyan legal system as a whole. Consequently, it
will be unlikely that the new regime leads to a more successful protection of traditional knowledge.
1.3 Statement of the Problem

The nature of traditional knowledge demands qualifying the conventional intellectual property law
regime as applied to that subject. It is now widely agreed that customary laws and norms under
which such knowledge is held should inform the appropriate regulatory framework for such
29
Ouma M, ‘The policy context for a commons approach to traditional knowledge in Kenya’ 134.
30
Protection of Traditional Knowledge and Cultural Expressions Act, No. 33 of 2016.
31
In particular, these are Articles 11, 40 and 69(1)(c) of the Constitution.
6
knowledge,32 if its communal, cultural and transgenerational value is to be maintained. In Kenya,
this would imply the utilisation of customary law systems and norms in managing and protecting
traditional knowledge.
This position is incorporated in the Act. This recognition of the applicability of African customary
law notwithstanding, it has been questioned whether the Act is likely to significantly improve the
management and protection of traditional knowledge and the rest of its subject-matter. This is more
so considering the mixed success in developing and protecting similar areas, such as community
land rights.33
Without a robust framework on African Customary Law to protect traditional knowledge, the aim
of the Act in creating an effective and appropriate sui generis mechanism may remain a tall order.
1.4 Justification of the Study

As of 2014, one study identified that well over half of the world’s population depend on traditional
medicine for healthcare, with up to 80% situated in the developing world,34 of which Kenya is
part. Traditional knowledge has continuously faced many threats. The most prominent ones
include the appropriation and the exclusion of the indigenous local communities that own it, from
its benefits. It is noteworthy that in recent times, heightened focus on traditional knowledge comes
from, among other things, evidence of increased commercialization of traditional knowledge in
pharmaceutical industries.35 Similarly, numerous documented examples36 of third parties
unscrupulously misappropriating traditional knowledge have been noted. This has resulted in
suspicion and mistrust between indigenous local communities and third parties, thereby posing
obstacles to potentially beneficial partnerships.37
32
See World Intellectual Property Organisation, ‘The protection of traditional knowledge: Draft articles’,
http://www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_21/wipo_grtkf_ic_21_ref_facilitators_text.pdf, on 30th
March, 2018. Part of the subject matter of the Articles is to “ensure the [use] safeguarding of traditional knowledge
on the basis of customary laws, protocols and community procedures [with] through prior informed consent and
exchanges based on mutually agreed terms…”
33
See Katiba Institute, ‘Traditional Knowledge and Cultural Expressions Act’, at
http://www.katibainstitute.org/traditional-knowledge-and-culture-expressions-act-2016/, on 30 May, 2018.
34
Salis-Lagoudakis, Hawkins J, Greenhill S, Pendry C, Watson M, Tuladhar-Douglas W, Baral S, and Savolainen V,
‘The evolution of traditional knowledge: environment shapes medicinal plant use in Nepal’, 281(1780) Proceedings:
Biological Sciences, 2014, 2.
35
See Ouma M, ‘The policy context for a commons approach to traditional knowledge in Kenya.’
36
Some cases are discussed exhaustively under Chapter 2.
37
See Ouma M, ‘The policy context for a commons approach to traditional knowledge in Kenya.’
7
In 1995 for instance, the German company Bayer filed a patent on a process for the biosynthesis
of acarbose. This is a drug which regulates the entry of glucose into the blood system and is
prescribed for type II diabetics. It was later confirmed that the process utilized a type of bacteria
originally taken from Lake Ruiru in Kenya. Though sales of the same were worth 379 million
dollars in 2004, none of these benefits were shared with the local community.38 Though this might
seem a dated event, Harrington observes that:39
“The last fifteen years have seen a number of policy and legislative initiatives in relation
to the regulation of traditional medical practice in Kenya. That none has so far been
realized is significantly due to a fragmentation of responsibility within the state…”
The centrality of African customary in the regulation of traditional knowledge, and the subsequent
promulgation of the enabling Act has been discussed. Even after its enactment however, the same
challenges persist. Communities within which such knowledge is held still hold it at the threat of
expropriation, having there been no significant institutional or management changes to reflect the
objectives of the Act. There is therefore, a need to assess the likelihood of the Act achieving its
goals. An examination of the supporting framework on the applicability of African customary law
to this phenomenon may provide the answer.
Misappropriation is inevitable, as the necessary consequence of a weak regulatory framework

articulating the rights of the knowledge holders and the systems of managing such knowledge. The
study therefore arguably tackles this challenge, and the role of legal provisions on African
customary law in retaining this weakness, almost by design.
1.5 Research Questions

This study will be structured around the following research questions:
(i) Whether African Customary Law is the appropriate sui generis mechanism for
protecting traditional knowledge.
38
Harrington J, ‘Traditional medicine and the law in Kenya’, in Gale NK and McHale JV, Routledge handbook of
complementary and alternative medicine: Perspectives from social science and law, Routledge Taylor and Francis
Group, 2015, 189.
39
Harrington J, ‘Traditional medicine and the law in Kenya’, 189.
8
(ii) Whether the ‘inclusive subordination’ of African customary law, embodied in the
repugnancy clause and to some extent in the constitutionality test, is a relevant factor
in inhibiting the protection of traditional knowledge.
(iii) Whether the retention of the repugnancy clause and the uncritical application of the
constitutionality test, will significantly impede the achievement of the Act’s goals to
protect traditional knowledge.
1.6 Hypotheses
Considering the research questions as framed, this study will hypothesise as follows:
(i) Sui generis regimes are generally critical for the effective protection of traditional
knowledge systems.
(ii) Continued inclusive subordination of African customary law is likely to inhibit the
achievement of the objectives of the Act in relation to traditional knowledge.
(iii) Removal of the repugnancy clause in legislation will contribute significantly to the
attainment of the objectives of the Act in relation to traditional knowledge.
9
1.7 Literature Review
There is a wide spectrum of literature on protection mechanisms for traditional knowledge. As is
clear, the main fields in which these efforts are concentrated are intellectual property law and
human rights law. There is also wide consensus that traditional knowledge is best-protected by
employing customary laws in the respective regimes designed to protect it. The specific role of
customary law in these endeavours is, however, not very clear.
(I) Traditional Knowledge and Customary Law

Writing on the history of traditional medicine in Kenya, Harrington has noted that while a vital
source of health care for a majority of the population, the practice of traditional medicine is
increasingly stratified, particularly for the poor and those living in remote areas.40 Although the
great bulk of state health care resources are allocated to the delivery of biomedical care, traditional
healers are considerably more accessible to ordinary Kenyans, particularly in remote, rural areas.
While the doctor-patient ratio is approximately 1:33,000, that for traditional healers is 1:950.41
Thus, contrary to popular belief, there is a stratified market for both forms of care in Kenya. It
would therefore appear that an appropriate legal framework for robust protection and management
of traditional knowledge is a subject worthy of concern. Such a framework does not necessarily
have to be embedded in statutory law.
The core achievement of an effective regime governing traditional knowledge would entail non-
appropriation, recognition of existing cultural norms and regulations that govern the knowledge.42
By its very nature, traditional knowledge requires to be valued and utilised in accordance with the
indigenous protocols that govern its use and dissemination. This includes the need for prior
40
Group, 180.
41
Group, 185.
42
Ouma M, ‘The policy context for a commons approach to traditional knowledge in Kenya’, 149. See also Article
8(j), Convention on Biological Diversity, 1992.
10
informed consent and the establishment of an appropriate benefit-sharing arrangement on mutually
agreed terms.43
The relation between modern sui generis laws and customary laws ranges between two principles:
independence of the rights granted by the modern and traditional systems, and the state’s direct
recognition of the rights enshrined and protected under the relevant customary law. An important
function of customary law would be to determine: the ownership of the elements of traditional
knowledge, the responsibilities and equitable interests associated with traditional knowledge, the
rights of customary use of traditional knowledge that should be permitted to continue under a
traditional knowledge regime, and the entitlements to share benefits from such use.44 Customary
law would clarify how these various rights and entitlements are identified and distributed within
traditional communities. The International Labour Organisation Convention 169 recognizes the
rights of indigenous peoples to conserve their customs and institutions. It provides that when
applying national legislation, customs and customary law should be taken into account without
necessarily defining what is understood by customs or when customary law is required.45
Customary law procedures may be the determinant of rules of access and holding traditional
knowledge, and it might help if this is recognized by formal protection systems. Maintaining
customary laws can also be crucial for the continuing vitality of the intellectual, cultural and
spiritual life and heritage of indigenous peoples and local communities.46 Accordingly, customary
law can serve as the fundamental legal basis or source of law for a community’s legal rights over
traditional knowledge, a factual element in establishing a community’s collective rights over
traditional knowledge. Moreover, it could serve as a means of determining or guiding the
procedures to be followed in securing a community’s “free prior informed consent” for access to
and/or use of traditional knowledge.
In his exposition on African Customary Law systems, Onyango considers the place of such
systems in contemporary Africa, and notes that their influence and applicability has had a renewed
43
Stoianoff N, ‘A governance framework for indigenous ecological knowledge protection and use’, in Levy R,
O’Brien M, Rice S, Ridge P, Thornton M (Eds), New directions for law in Australia: Essays in contemporary law
reform, ANU Press, 2017, 240.
44
Sackey E and Kasilo O, ‘Intellectual property approaches to the protection of traditional knowledge in the African
region’, The African Health Monitor – Special Issue: African Traditional Medicine, 2010, 10.
45
Article 8 of the International Labour Organisation Convention 169 on Indigenous and Tribal Peoples in
Independent Countries.
46
World Intellectual Property Organisation, ‘Background Brief No. 7: Customary law and traditional knowledge’.
11
attention. He observes that today more than ever before, the world is inclined towards global
cultures, noble ideas and smart legal doctrines that would contribute effectively to the need for
lasting development and poverty alleviation in Africa.47 Consequently, revival of customary law
as a legal discourse today should not appear as resurrecting it from the dead laws but highlighting
the very legal phenomena that are existing in reality and posing serious challenges to the existing
juridical orders.48
(II) The Impact of Inclusive Subordination on Customary Law

The effect of inclusive subordination of African Customary law may be attributed to the
repugnancy clause and the constitutionality test, in varying degrees. Customary law may in
principle be the indicated law, but it will not be applied if it fails to satisfy the repugnancy and
incompatibility tests.49 The repugnancy test usually entails weighing African customary practices
against the ‘ideal’ that is Western values.50 According to Justice Ocran of Ghana:
“The repugnancy clauses were meant to rule out laws and customs perceived to be against
Christian values and morality or cruel and unusual standards of the colonisers. There were
various formulations of these clauses. Some stated that the rules should not be repugnant
to “natural justice, equity and good conscience.” Others read: “Not contrary to [religious]
justice, morality or order.” Still others read: “Not repugnant to morality, humanity or
natural justice or injurious to the welfare of the natives.”51
According to Onyango, repugnancy as a mere revolting against some habit or behaviour is

essentially subjective cultural judgment. When repugnancy is used in the sense of a revolt against
certain habits of behaviour in a given community or shared attitudes then the judgment is
considered unfair for “what is repugnant to you may not be repugnant to me.” 52 The repugnancy
principle central to the critique in this study is the technique of ‘inclusive subordination’.
47
Onyango P, African Customary Law: An Introduction, LawAfrica, Nairobi, 2013, 5.
48
Onyango P, African Customary Law: An Introduction, 5.
49
50
Ambani J and Ahaya O, ‘The wretched African traditionalists in Kenya: The challenges and prospects of customary
law in the new constitutional era’, 1(1) Strathmore Law Journal, 2015, 53.
51
Ocran, ‘The clash of legal cultures’, 475.
52
Onyango P, African Customary Law: An Introduction, 44.
12
Nevertheless, the general constitutional provision on the applicability of African customary law
does not embody a repugnancy test but rather, a constitutionality test. 53 However, it is still
submitted that the constitutionality test(s) to which African Customary Law is subjected in Kenya
dilute the normativity of this regime of law. Accordingly, Ambani and Ahaya highlight that the
Constitution contains provisions that negatively affect the applicability of African customary law
in three ways. Firstly, it offers itself as the first most important yardstick against which the
relevance of all other laws, religions, customs, and practices are measured. Secondly, it stipulates
that no one shall be tried for a criminal offence unless it amounts to an offence under the laws of
the State or under international law. Thirdly, the Constitution “restricts customary law and religion
through certain other subtle provisions whose overall effect is to sideline traditional practices.”54
Ambani and Ahaya proceed to note: “religious and cultural traditions not analogous to Christianity
or English common law stand to face stiff opposition and obstructions, firstly, from the
Constitution itself, then general Acts of Parliament and judicial precedents, Western traditions and
even international human rights instruments to which Kenya is a party.”55 In the same vein, various
critics have faulted the repugnancy clause as being fraught with ambiguity. For instance,
“morality” has been criticised as being the “least precise” component of such clauses. Allott noted
in the postcolonial period that:56
“On the whole the tendency of the courts in Africa has been steadily towards
broadmindedness. As sociological knowledge of African peoples grows, and knowledge of
the detailed rules of customary law becomes more ample and more accurate, there is less
and less temptation to declare something that we do not understand to be repugnant to our
ideas.”
Accordingly, it is within the discretion of a judge whether to allow a certain rule of customary law
to operate or not; but this discretion is a judicial one which should be exercised, so far as possible,
53
See Ambani J and Ahaya O, ‘The wretched African traditionalists in Kenya: The challenges and prospects of
customary law in the new constitutional era’, 1(1) Strathmore Law Journal, 2015, 49-50.
54
See Ambani J and Ahaya O, ‘The wretched African traditionalists in Kenya: The challenges and prospects of
customary law in the new constitutional era’, 49-50.
55
Ambani J and Ahaya O, ‘The wretched African traditionalists in Kenya: The challenges and prospects of customary
law in the new constitutional era’, 2015, 42.
56
See Allott A, New essays in African Law, Butterworths, London, 1970, 162. The clause will usually consist of a
formulation of factors such as ‘natural justice’, ‘humanity’, and ‘equity’.
13
on clear and satisfactory principles.57 Wilson J in Gwao bin Kilimo v Kisunda bin Ifuti58 attempted
an enunciation of these principles and observed as follows:
“Morality and justice are abstract conceptions and every community probably has an
absolute standard of its own by which to decide what is justice and what is morality… To
what standard, then, does the Order in Council refer – the African standard of justice and
morality or the British standard? I have no doubt whatever that the only standard of justice
and morality which a British court in Africa can apply is its own British standard.”
Even in contemporary Africa, it would not be safe to assume that because there is no great disparity
between judges and parties to cases, the standard of morality would be more rigid, consistent or
determinate. Thus of the judge, Allott notes that:
“Even if he originates from the local community, moreover, there is an enormous

educational and cultural gap between a senior judge, with a western education and among
the most highly salaried posts in the country, and the ordinary farmers whose affairs he
may be dealing with.”59
Ambani and Ahaya reformulate this idea to argue that the said racial distinction in the colonial
period has now become one of class. Furthermore, the repugnancy clause has a less diminished
role in property law. A number of unconscionable transactions involving property, are already
caught by special legislation.60 Consequently, there appears to be no visible utility in retaining the
repugnancy clauses.
These stark realisations force us to confront the pointlessness of repugnancy clauses. However,
this study focuses, not on the diverse interpretations of the repugnancy clause but rather, its broader
effect on how African customary law is perceived in a legal system, including the uncritical
application of the constitutionality test. These provisions are not merely irrelevant: they are the
source of the systemic crisis under which African customary law finds itself in the Kenyan legal
system.
57
58
(1938) 1 T.L.R. (R.) 403.
59
Allott A, New essays in African Law, Butterworths, London, 1970, 164. For a reformulation of this idea, see Ambani
J and Ahaya O, ‘The wretched African traditionalists in Kenya: The challenges and prospects of customary law in the
new constitutional era’, 1(1) Strathmore Law Journal, 2015.
60
See, generally, Allott A, New essays in African Law, Butterworths, London, 1970, 164-180.
14
1.8 Conceptual Framework
The conceptual framework underpinning this study constitutes the intersection between sui generis
rights and the behaviour toward African Customary Law in Kenya. The framework considers sui
generis approaches as the most appropriate form of protection for traditional knowledge.
The framework proceeds to analyse African Customary Law, which has been tabled as the most
suitable determinant of the sui generis rights entailed in traditional knowledge. Accordingly, the
study investigates the nature of state recognition and application of this regime, uncovering the
legal phenomenon termed as “inclusive subordination.”
(I) Sui Generis Regimes as the Ideal Protection Regime for Traditional Knowledge
Systems
According to Sackey and Kasilo, approaches to the protection of traditional knowledge vary. 61
One approach proposes the better use of existing intellectual property rights through capacity
building, administrative initiatives, and programs that better recognize and defend traditional
knowledge as legitimate and valuable intellectual property assets of the communities that have
developed them.62 Here, the key to realizing the benefits from existing intellectual property rights
is the understanding of how the intellectual property system works and identifying those kinds of
traditional knowledge that can be protected. However, it has been argued that intellectual property
systems increase the risk of misappropriation and therefore, may be partly responsible for the loss
of traditional knowledge. The utilitarian objective of the intellectual property system also presents
some difficulty for protecting traditional knowledge which is deeply embedded in the social and
religious life of its communities.
The related international regime is also weak because source disclosure and prior consent
requirements are not presently mandated under the World Trade Organisation (WTO) Trade-
Related Intellectual Property Rights (TRIPS) Agreement. It does not require source disclosure of
the invention or the prior consent of the holder for patentability, and does not provide for the
absence of these conditions as a basis for invalidation/revocation. Thus, governments are not
required to amend their domestic regulations to require patent applicants to provide patent offices
61
See Sackey E and Kasilo O, ‘Intellectual property approaches to the protection of traditional knowledge in the
African region’, The African Health Monitor – Special Issue: African Traditional Medicine, 2010.
62
See, generally, Sackey E and Kasilo O, ‘Intellectual property approaches to the protection of traditional
knowledge in the African region’.
15
with information concerning the origin of the genetic resources in the invention or some proof of
prior informed consent from TK holders. This notwithstanding, it appears that the most effective
form of positive protection of TK arguably lies in the area of patent law.
Another approach is extending or adapting the conventional systems of intellectual rights, to
include sui generis elements that are especially designed to improve the way these systems serve
the particular interests of traditional knowledge holders. Such an approach may adopt measures of
protection specific to traditional knowledge. However, in countries of the African region, it has
been noted that the expertise in legal drafting required under a sui generis system, and the lack of
public enlightenment and institutional structures, are some of the major constraints in the design
and implementation of an effective administration and enforcement of sui generis protection of
The third approach entails creating a distinct category of rights in traditional knowledge as such,
through sui generis intellectual property systems designed specifically for this matter. A number
of existing sui generis systems utilise references to customary laws and protocols as an alternative
or supplement to the creation of modern intellectual property rights over traditional knowledge.
What has been, in recent times, the international benchmark for a sui generis approach in this
regard, was developed by the Organisation of African Unity: Model Law for the Protection of the
Rights of Local Communities, Farmers and Breeders and for the Regulation of Access to
Biological Resources.63
This study proceeds on the notion that the suitability of sui generis protection systems to traditional
knowledge is a matter of extensive consensus.64 The primary point of convergence in literature on
here is the intuitive understanding that classic intellectual property tools may not be fully
applicable or effective in the case of traditional knowledge given some unique or additional
63
Presented in April 1998, to the then Organization for African Unity (OAU) (now the African Union (AU)), through
its Scientific, Technical and Research Commission, which initiated a Draft Model Legislation on Community Rights
and Access to Biological Resources. The Draft Model Legislation was sponsored by the government of Ethiopia at
the 34th Summit of Heads of State and Government in June/July 1998, where it was decided that governments of
Member States should formally adopt the Model Law. This initiative represents an attempt to provide an ideal legal
framework for member states to develop their own policies, laws and regulations on access to bio-resources.
64
See, for instance, Feris L, ‘Protecting traditional knowledge in Africa: Considering African approaches’, 4 African
Human Rights Law Journal (2004); Roht-Arriaza N ‘Of seeds and shamans: The appropriation of the scientific and
technical knowledge of indigenous and local communities’ (1996); Brendan Tobin, ‘Redefining perspectives in the
search for protection of traditional knowledge: A case study from Peru, RECIEL 10(1) 2001; and Manuel Ruiz Muller,
‘Protecting shared and widely distributed traditional knowledge: Issues, challenges and options’, International Centre
for Trade and Sustainable Development, 2013, among many others.
16
variables, which include difficulties in determining a right holder or singling out an inventor or
creator, a cultural resistance to assigning monopoly-like property rights, and the collective nature
of the innovation process within communities and transgenerational passing-on of specific
traditional knowledge.65
Having taken for granted the fundamental relevance of African customary law as the primary
regulatory regimen for traditional knowledge, this study will proceed to assess the prospects of the
Act in achieving significant progress in protecting such knowledge within the broader legal system
in Kenya.
(II) The “Inclusive Subordination” of African Customary Law

“Inclusive subordination” is a legal technique the employment of which entails the formal
recognition of the applicability of a law (or regime of law), coupled with little actual recognition
or enforcement. This is primarily due to the existence of a broader or more over-arching, and
implicitly preferred, law or regime of law.66
In analysing the steps in the evolution of marriage rules in Kenya, Sylvia Kang’ara notes 67 that
proponents of colonialism assumed that African and English land tenure concepts were
irreconcilable, which justified expropriation and displacement. Resistance to colonialism
influenced formal law to recognise customary marriages as valid and customary land tenure as
worthy of protection. Nonetheless, colonial governments maintained that the English form of
marriage was superior and offered incentives for conversion of customary marriages. This was
the essence of inclusive subordination in the colonial68 and post-colonial eras. Subsequent formal
65
Manuel Ruiz Muller, ‘Protecting shared and widely distributed traditional knowledge: Issues, challenges and
options’, International Centre for Trade and Sustainable Development, 2013,19.
66
As mentioned earlier, the phrase was first encountered in the work of Sylvia Kang’ara, describing the legal technique
through which African customary law was formally accepted but its application heavily qualified. See Kang’ara S,
‘Beyond bed and bread: The making of the African state through marriage law reform – constitutive and transformative
influences of Anglo-American legal thought’, 9 Hastings Race and Poverty Law Journal, 353-396, 362.
67
See, generally, Kang’ara S, ‘Beyond bed and bread: The making of the African state through marriage law reform
– constitutive and transformative influences of Anglo-American legal thought’, 9 Hastings Race and Poverty Law
Journal, 353-396.
68
In the colonial era, the moral, economic, and political costs of colonial governance hinged on timely institutional
evolution and reformulation of marriage law. British colonies retained customary marriages as it would have been
impossible to execute a capitalist national economic policy if the idea of the customary family was dismantled.
Therefore, it underwent doctrinal improvement in order to align the family with the new economic outlook of the state,
diminishing the normative hierarchical polarization with Western-derived law.
17
recognition of both forms, Kang’ara submits, only meant an era of competitive and disharmonious
coexistence, creating systemic problems and great need for state-directed marriage law reform.
1.91 Research Methodology

The study will constitute largely of qualitative data analysis and review of existing literature on
African customary law, traditional knowledge and intellectual property law.
This study will also include two case studies. The first case study will involve an examination of
the workings and effects of the legal technique of inclusive subordination in the personal law of
marriage and property in postcolonial Kenya. The consequences of this technique will be
examined, and parallels, where present, will be drawn with the case of traditional knowledge.
The second case study will involve a more specific analysis of the framework of protection of
traditional knowledge in Kenya. This will contextualise the problems facing the adequate
protection of traditional knowledge. The finer and more specific variables provided by this branch
of knowledge will also provide a good testing ground for the findings of the first case study on
inclusive subordination.
At the outset, however, it is important to make a qualification relating to the workings of the
technique of inclusive subordination as observed in other regimes of personal law, particularly
marriage and property law. First, customary law has, historically, not formally been employed in
regulating traditional knowledge. It is only with the enactment of the Act that we see formal
recognition of African customary law as being, to a good extent, the operative law on traditional
knowledge. This recognition may be viewed as speaking to the limits of an effective juxtaposition
of traditional knowledge and the mentioned regimes of personal law, within which the technique
of inclusive subordination has been applied. To this extent, this may also be viewed as a potential
limitation to this study.
The research will therefore undertake a wide literature review covering academic and policy texts,
drawing from reports and studies on traditional knowledge, intellectual property law and African
customary law. It will focus on documents published in the last two decades and will include
unpublished literature only if it was provided by a known professional source. However, many
discussions on African customary law will be drawn from literature from the first decades after
independence. These will provide rich insights due to the specific measures undertaken by the
18
independence government in collaboration with the School of Oriental and African Studies
London to document and systematise African customary law. This will be accompanied by the
attendant commentary from the said period. The study will also draw from feedback from
professionals and academics consulted in this area.
The study will be undertaken in twelve months from June, 2018 to April, 2019.
1.92 Limitations
The main limitation for the study is likely to be inadequate time and resources to commit to
interaction with actual traditional knowledge practitioners and custodians of traditional knowledge
in the process of gathering qualitative primary data.
1.93 Chapter Breakdown

The study will be divided into five chapters which will be structured as follows:
Chapter one will examine the linkage between African customary law and traditional knowledge.
This discussion is meant to draw the background to an analysis of the centrality of formal and
active recognition of African customary law to the protection of traditional knowledge. This
Chapter will therefore lay the background that precedes an in-depth approach to the research
objectives.
Chapter 2 will be an assessment of the legal and policy framework on the protection of traditional
knowledge in Kenya. Over and above this, there will be an extensive discussion of the
demonstrable attempts to apply African customary law in the regime of traditional knowledge, and
any discernible statistics that suggest conclusions regarding the importance of African customary
law. This discussion will lay the groundwork for the discussion to follow in Chapter 3 on the
repugnancy clause.
This Chapter will disclose the formal ways in which African Customary Law has been integrated
into the Kenyan legal system, which would in turn provide a pointer towards the first research
question, which is the position of the Act in relation to protection of traditional knowledge.
Chapter 3 will entail a case study which will consider the history of the inclusive subordination of
African customary law in personal law regimes (marriage and property) in Kenya. This Chapter
will answer the second research question by demonstrating that inclusive subordination of African
19
Customary Law may have an adverse effect on the protected subject matter, if the former is not
sufficiently integrated and respected.
Chapter 4 will be an analysis of the repugnancy clause and its relationship to the protection
traditional knowledge, based on the findings above. It will also attempt to conclude the prediction
made under hypothesis (ii) above. This Chapter will answer the third question by exploring the
prospects for protection of traditional knowledge if the repugnancy clause is deleted and the
constitutionality test is applied more critically.
Chapter 5 will constitute a brief overview of the research in totality. It will also involve an analysis
of the findings, which will form the basis of the recommendations made. recommendations.
20
CHAPTER TWO
SUI GENERIS APPROACHES, TRADITIONAL KNOWLEDGE AND
AFRICAN CUSTOMARY LAW
2.1 Introduction
This Chapter explores the legal foundations of the various sui generis approaches proposed for the
protection of traditional knowledge. It proceeds to detail why Customary Law, particularly African
Customary Law in the case of Kenyan communities, is integral and most desirable as the defining
regimen of a sui generis system for traditional knowledge.
2.2 The Existing Legal Framework

The Constitution of Kenya specifically defines property to include intellectual property. 69 In
addition, the Constitution recognises culture as the foundation of the nation and as the cumulative
civilization of the Kenyan people.70 The Kenyan state also has a duty to promote all forms of
natural cultural expression, to recognise the role of indigenous technologies in development and
to promote the protection of intellectual property rights.71 In addition, the Kenyan State is required
to support, promote and protect the intellectual property rights of the people of Kenya.72 The
Constitution also requires that natural resources be sustainably managed, and that biodiversity and
genetic resources be protected.73
Before statutory intervention in 2016, Kenya had a National Policy on Traditional Knowledge,
Genetic Resources and Traditional Cultural Expressions (“the Policy”)74 which was in various
aspects the forerunner to the statutory law to be discussed shortly.
The Policy was aimed at laying the ground for a national framework that recognizes, preserves,
protects and promotes sustainable use of traditional knowledge as well as the mainstreaming of
traditional knowledge systems in view of national development targets. Other than equitable
69
Article 260, Constitution of Kenya 2010.
70
Article 11(1), Constitution of Kenya 2010.
71
Article 11(2), Constitution of Kenya, 2010.
72
73
74
Kenya, National Policy on Traditional Knowledge, Genetic Resources and Traditional Cultural Expressions, 2009;
at http://www.wipo.int/wipolex/en/details.jsp?id=11300, on 11th March, 2019.
21
benefit-sharing, sustainable development and international cooperation, the Policy had prior
informed consent and good faith as guiding principles. It is notable that employing a sui generis
regime suited to particular local communities finds significant grounding in the two latter
objectives. The question is, however, how faithful the subsequent regime is to such foundational
principles.
The Policy emphasizes that historically, communities have voiced concerns about unauthorised
reproduction of their traditional knowledge and traditional cultural expressions. Consequently, not
only do third parties neglect to seek authority, but also fail to acknowledge the source of the
relevant knowledge or expressions.75
The Protection of Traditional Knowledge and Traditional Cultural Expressions Act (“the Act”)
was passed in 2016 after a protracted process of policy discussions and reviews involving the
relevant organs in the areas of culture and intellectual property. The Act was passed with the
objective of creating a framework for the protection and promotion of traditional knowledge and
traditional cultural expressions in Kenya. The nature of the sui generis right granted by the Act is
that it allows the relevant “holders” to exclude traditional knowledge from use, or to license it at a
fee. Under the Act, a “holder” is defined as a recognised individual or organisation within the
community entrusted with the custody of traditional knowledge or traditional cultural expressions
according to customary law.76
2.3 Sui Generis and Other Approaches in Protection of Traditional Knowledge in Kenya
Having come to fruition as a matter of law in Kenya, we have established that traditional
knowledge is protectable through a sui generis system. The next meaningful inquiry is the nature
of the regime specifically designed to protect it. The import of a sui generis system is a regime that
modifies features of existing intellectual property rights.77 According to Ferris, the idea of a sui
75
See also Kongolo T, African contributions in shaping the worldwide intellectual property system, Routledge, New
York, 2013., 63.
76
Section 2, The Protection of Traditional Knowledge and Traditional Cultural Expressions Act of 2016.
77
Primarily the tools available under patent law, copyright law, trademark law and geographical indications law. Also
relevant are the fields of trade secret law and contract law. For the application of the latter to intellectual property
rights in general and traditional knowledge in particular, see Ferris L, ‘Protecting traditional knowledge in Africa:
Considering African approaches’, 4 African Human Rights Law Journal, 2004, 242-255.
22
generis right is “derived from the vacuum that exists within the area of intellectual property to
cater for those areas that do not fit within traditional notions of intellectual property.”78
Such an approach was initially legally conceptualised, in the African context, by the Organisation
of African Unity through the Model Law for the Protection of the Rights of Local Communities,
Farmers and Breeders and for the Regulation of Access to Biological Resources.79 The Model Law
represented an attempt at providing the benchmark for a legal framework against which African
states could develop their own policies and laws on access to biological resources, including
traditional knowledge to the same.
The Model Law notes that in Africa generally, some form of formal or informal communal control
over biological resources usually does exist. This is founded upon, and perhaps is in furtherance
of, the well-accepted rule that a state and its people exercise sovereign and inalienable rights over
their biological resources. The Model Law also recognises that states have not always shown
initiative in protecting communal rights to resources which are the subject of such inalienable
rights on behalf of communities. The Law notes as well that traditional knowledge is in various
ways dissimilar to Western concepts of intellectual property, implying a need for distinct
protection.80
Article 16 of the Model Law states, inter alia, that indigenous and local communities have the right
to use their innovations, practices, knowledge and technologies in the conservation and sustainable
use of biological diversity. Another equally important right of such communities is the exercise of
collective rights as the legitimate custodians and users of their resources. In furtherance of these
ends, Article 17 requires the recognition and protection of community rights under the principles
and practices of customary law. Article 23 is subsequently cognisant of the fact that the previous
provision would be meaningless if communities were not allowed to formulate their own principles
and practices independently. This recognition allows the communities, already well versed in their
own customary rules and practices, to apply them in the manner in which they have been designed.
The knock-on effect is that the dynamism of traditional knowledge is not at odds with the legal
78
Ferris L, ‘Protecting traditional knowledge in Africa: Considering African approaches’, 4 African Human Rights
Law Journal, 2004, 242-255, 251-252.
79
At the 34th Summit of Heads of State and Government in 1998, the initiative was sponsored by the Ethiopian
government.
80
See Ferris L, ‘Protecting traditional knowledge in Africa: Considering African approaches’, 4 African Human Rights
Law Journal, 2004, 242-255, 251.
23
regime managing it. Thus, communities are, under this provision, to be the primary determinants
of the contents of the rights tied to their traditional knowledge.
2.4 Various Sui Generis Approaches

(I) Human Rights Law
A. Application
A recent sui generis approach to protecting traditional knowledge has been located in the
international human rights framework. On this view, the key international human rights
instruments may be deployed to protect traditional knowledge through the various rights that they
entail. The human rights approach is centred on a recognition of the human rights obligations
attaching to states that have ratified international human rights instruments. In Africa, the primary
instrument is the African Charter on Human and Peoples’ Rights81
Of primary importance to this approach is Article 14 of the African Charter guaranteeing the right
to property. This right may only be limited in view of public need or in the general interest of the
community and in accordance with relevant laws. Since it has been long settled that traditional
knowledge is intellectual property, and that intellectual property is a form of intangible property,
then the right to property in relation to traditional knowledge falls within the scope of Article 14.
Ferris has taken this further to submit that the right to a satisfactory environment suitable for
development encapsulated under Article 24 may ultimately contribute to the promotion of
traditional rights, needs and values of indigenous communities.82 This is because, according to the
African Commission on Human and Peoples’ Rights, this right requires governments to, amongst
other obligations, provide access to information to communities involved in conservation and to
grant those affected an opportunity to be heard and participate in the development process.83 Thus,
the connection between the environmental right and traditional knowledge is that the conservation
81
Organisation of African Unity, African Charter on Human and Peoples’ Rights, 27 June 1981, CAB/LEG/67/3 rev.
5, 21 I.L.M. 58 (1982), at https://www.refworld.org/docid/3ae6b3630.html, on 11th March, 2019.
82
Law Journal, 2004, 242-255, 254.
83
Law Journal, 2004, 242-255, 254.
24
of natural and ecological resources implicated by the right is largely organised around the
traditional ecological knowledge of communities towards this purpose.
In the same token, the right to development is seen as contributing to protection of traditional
knowledge, to the extent that such protection is grounded on the idea of social and economic
development that may be realized by communities by utlising their traditional knowledge.84
B. Limitations
A weakness of a human rights approach approach is that it may not be holistic enough to
correspond to and cover the entire breadth of what will usually comprise traditional knowledge.
At this point it is worth recollecting that this study considers traditional cultural expressions to be
part and parcel of its description of “traditional knowledge”; the differences between the two are
too negligible to have any doctrinal implications. Therefore, considering traditional knowledge in
the entire width of its scope, it would be a clear challenge to purport to locate a sui generis regime
merely in the environmental right or a broad right to property.
However, a key benefit of the human rights approach is that it offers much in the way of procedural
rights, that is, the rights engendered by the state’s obligation to provide access to information to
communities involved in conservation, as well as granting those affected an opportunity to
participate in the development process. Procedural rights are critical to the exercise of substantive
rights.85
(II) Information Communication Technology and Related Tools

A. Application
According to Ouma, instruments of law and policy ought to aim at enhancing communal
approaches to protection and management of traditional knowledge, through “enabling
environments for documentation and value enhancement practices that can ensure perpetuity and
dynamism” of such knowledge.86
84
Law Journal, 2004, 242-255, 255.
85
Law Journal, 2004, 242-255, 254-255. Similarly, Principle 10 of the Rio Declaration on Environment and
Development recognizes the need to have access to information in order to protect the environment.
86
Ouma M, ‘The policy context for a commons- based approach to traditional knowledge In Kenya’, 134.
25
As one of the elements of the said communal approaches, Ouma proposes the “commons” model.
This model is centred around making the relevant knowledge increasingly available to third parties
as a part of larger networked, collaborative relationships.87 Once commons structures are
formalised, the relevant information would be shared and preserved within a community in a
manner guided by an agreed instrument giving a degree of formality and enforceability to the
traditional knowledge commons.88 What is notable about the commons model is that it is not a
mere exercise in defensive protection of traditional knowledge. Defensive protection entails
“taking measures to ensure that unauthorised parties do not unfairly acquire intellectual property
rights over other people’s traditional knowledge.89 Despite deploying one of the conventional
tools90 of defensive protection, namely databases, the commons model is not merely defensive in
nature, and databases generated in its furtherance serve a much broader role.
Thus, under this model, databases form part of an online licensing system which should ideally
provide a large degree of transparency. Digitised traditional knowledge is stored in an electronic
database that has controlled and limited access.91 The additional utility of such a database – in that
it enables licensing and transparency, adds a component of positive protection, under which the
rights of existing traditional holders are recognised and enforced.
Another arena through which information and communication tools can be utilised in the
protection of traditional knowledge and traditional cultural expressions is through the interaction
between the digital environment and copyright law. In the analogue environment, most traditional
cultural expressions, for instance, were localised within particular communities. The digital
environment on the other hand has provided a perfect opportunity for the increased distribution
87
88
89
WIPO, ‘Defensive protection measures relating to intellectual property, genetic resources and traditional
knowledge: An update’, Sixth Session of the Intergovernmental Committee on Intellectual Property and Genetic
Resources, Traditional Knowledge and Folklore, 2004, at
https://www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_6/wipo_grtkf_ic_6_8.pdf on 10th March, 2019.
90
Three types of defensive protection are possible: (i) usage of databases to identify prior art that would stand in the
way of the granting of an illegitimate patent; (ii) secrecy; and the (iii) imposition of requirements of disclosure as a
condition for acquiring intellectual property rights, all of which would limit the acquisition of rights over the subject
matter of traditional knowledge.
91
See, generally, Ouma M, ‘The policy context for a commons - based approach to traditional knowledge In Kenya’.
26
and use of this subject-matter, at the same time providing a platform for works that would
otherwise have disappeared.92
Using digital technologies, therefore, digitisation projects93 carry the promise of assisting
indigenous and local communities to protect, manage and promote their cultural heritage for their
cultural and economic development.94 This approach is further buttressed by the fact that
documentation is vital for continuity and diversity of traditional knowledge and cultural
expressions, by virtue of the fact that the relevant knowledge or expressions are stored in a
permanent form.
B. Limitations
Whereas this is an approach to eventually enhance communal management, it is not, strictly

speaking, an African customary law model, but rather a technological tool. In fact, technology is
crucial for the creation of databases. One way in which the commons model is implemented is by
digitally documenting traditional knowledge in a “manner that enhances preservation and equitable
exploitation and simultaneously encouraging follow-on innovation.95 Failure to protect communal
resources using African Customary law as the primary source of norms and structure may run into
many of the failures occasioned by protection through conventional intellectual property tools.
Nonetheless, it is clear that protection in the online environment may not encompass all rights
implicated by traditional knowledge. Particularly, the ubiquitous utilisation of copyright to protect
expressions in online platforms does not have a clear relationship with fields of traditional
knowledge such as traditional medical knowledge and ecological knowledge. Since the threat in
this area usually constitutes misappropriation posed by illegitimate patenting, copyright may not
be a well-equipped regime in that regard.
92
Ouma M, ‘Copyright as an incentive and as a growth driver for digital development: Cultural heritage in the digital
era’, Paper Presented by Marisella Ouma at the African Ministerial Conference 2015 on Intellectual Property for an
Emerging Africa, Dakar, Senegal, November 3, 2015, 4.
93
In 2009, WIPO, under the creative heritage project undertook to help in the documentation of the Maasai culture
with the help of two members of the community. The key purpose was to help in documenting folk songs, dances
among others.
94
Ouma M, ‘Copyright as an incentive and as a growth driver for digital development: Cultural heritage in the digital
era’, 3.
95
27
(III) African Customary Law
It is probably fairly apparent that traditional knowledge in the context of this study relates to
knowledge tied to bioresources or other cultural resources that is held in a communal context by
indigenous African groups. This is already a preliminary pointer to the orientation in which
management of such a resource should be ordered, at least insofar as, as was alluded to in the
discussion on the TK Policy, the guiding principles of prior informed consent and good faith are
concerned.
Contrary to the popular belief that traditional knowledge is in the public domain, indigenous and
local communities who are the custodians of traditional knowledge in fact have systems of customs
and taboos in place to ensure that certain traditional knowledge is not made widely known, while
at the same time being passed on within the community.96 In this respect, there is great consensus
that respect and recognition of customary law is integral to the appropriate protection of traditional
knowledge.97
As discussed earlier, the notion of “customary law” connotes the laws, practices and customs of
indigenous and local communities.98 The protection of traditional knowledge using customary law
is, over and above the technical benefits of utilising that system, founded on the recognised need
to enhance communities’ control over commercialisation and exploitation of their traditional
knowledge. Customary law norms are important in this regard because they are regarded as
obligatory rules of conduct.
Protection of traditional knowledge through African Customary Law is based on several elements
inherent in the nature of such knowledge-holding amongst traditional communities. These may
accordingly be viewed as “guiding principles” in conceptualising a sui generis regime that
primarily incorporates African Customary Law.
Firstly, most African indigenous groups view traditional knowledge as having communal value,
to be publicly available (but not in the “public domain”) and not necessarily as a profit-bearing
commodity. The reason for the qualification of “publicly available” knowledge as distinguished
96
Ouma M, ‘The policy context for a commons- based approach to traditional knowledge In Kenya’, In In De
Beer Et Al Innovation And Intellectual Property: Collaborative Dynamics In Africa UCT Press, 2014, 132-150.
97
See WIPO, Customary law, traditional knowledge and intellectual property: An outline of the issues, 2013, 5.
98
WIPO, Customary law, traditional knowledge and intellectual property: An outline of the issues, 2013, 2.
28
from the “public domain” is that the latter is a term of art under intellectual property law that does
not depict the “public” nature of knowledge in quite the same way for traditional knowledge. In
intellectual property, a work comes into the “public domain” upon the rights holder renouncing
rights over it, or upon expiry of the term of protection, and so on. The term, therefore, implicates
the absence of legal protection for the relevant subject-matter. A description of traditional
knowledge as “publicly available”, on the other hand, carries the different meaning that despite
the subject-matter being available to the public, the knowledge is legally protectable, whether
through formal instrumentalities of state law or through community protocols and established
practices.
Hitherto, resistance to traditional knowledge protection has been justified, at least partly, by
reference to the importance of protecting the public domain.99 However, since traditional
knowledge and traditional cultural expressions were not at any time protected by intellectual
property rights in the conventional sense, they cannot legally be termed as having fallen into the
public domain.
As a legal concept, therefore, knowledge that is “publicly available” should be distinguished from
knowledge that is in the “public domain.” It would appear that the key element in making this
distinction is that “publicly available” traditional knowledge is still widely regarded as a
proprietary entitlement by the holders who would seek to protect it from wanton use and
unauthorised commercialisation. Knowledge in the public domain, on the other hand, is free to
access and use, that is, devoid of any censure or proprietary claim.
The idea that traditional knowledge and traditional cultural expressions are in the “public domain”
is based on the notion that they constitute “res nullius”, that is, are unowned.100 This is the same
socio-evolutionist bias used as a conceptual tool to justify the seizing of African territories in the
colonial era.101 According to the various communities, affected regimes include traditional medical
knowledge, cultural expressions such as oral traditions, literature, designs and visual and
99
Okediji R, ‘Traditional knowledge and the public domain’, Centre for International Governance Innovation Papers,
No. 176, 2018,
100
Commission on Human Rights, ‘Review of developments pertaining to the promotion and protection of the rights
of indigenous peoples, including their human rights and fundamental freedoms’, Joint Statement from the Indigenous
World Association and Indigenous Media Network, E/CN.4/Sub.2/AC.4/2005/CRP.3, 13 July 2005, 2.
101
See Okoth-Ogendo HWO, ‘The tragic African commons: A century of exploration, suppression and subversion’
Land reform and agrarian change in southern Africa, 2000.
29
performing arts.102
The implication here is that African Customary Law and its attendant fabric will typically provide
the regime of local management and use of traditional knowledge, whether such knowledge is
publicly available103 or not. A regulatory vacuum on the degree of “availability” of traditional
knowledge, which in most cases will be dictated by community rules, will ultimately mean that
third parties would obtain unfettered access to such knowledge and commercialise it to the
exclusion of others, including the relevant communities.
Secondly, the earlier analysis of the international framework on the sui generis right to traditional
knowledge revealed that customary law generally is expected to take centre stage in the
management of this communal resource. Particularly, indigenous and local communities are meant
to determine the content of the ensuing rights. Specifically, elements such as the orientation and
content of the right, how the right is to be acquired, and how the right is to be enforced would
depend on customary norms and practices,104 presumably those of African Customary Law.
Therefore, in such a case, African Customary Law would form the foundation of rights of use,
attendant exceptions, as well as exempting the continuing customary uses and practices from other
legal restrictions on the use of traditional knowledge.105
Thirdly, African Customary Law may be an element, the very definition of traditional knowledge.
The operation of customary law in such cases would be the reason why certain types of knowledge,
innovation, or expressions would be labelled “traditional”. Similarly, the holders and beneficiaries
of such knowledge may sometimes only be determined by reference to the relevant African
Customary Law.106
Fourthly, recourse to African Customary Law may be necessary if the correct procedures
underlying access and informed consent are to be followed. The latter is a cross-cutting legal
requirement under human rights law and genetic resources law, most specifically provided for
under the Act. The requirement is also consistent with Article 32 of the United Nations Declaration
102
Commission on Human Rights, ‘Review of developments pertaining to the promotion and protection of the rights
of indigenous peoples, including their human rights and fundamental freedoms,’ 3.
103
Traditional knowledge may be publicly available, secret, or sacred.
104
Law Journal, 2004, 242-255, 252.
105
106
30
on the Rights of Indigenous Peoples,107 which requires informed consultations to be conducted
with indigenous peoples before states can undertake projects that will affect indigenous peoples’
rights to their territories and resources. Further justification of applying African Customary Law
to management of traditional knowledge is that the system may be used to establish remedies
against misappropriation, as well as the appropriate dispute resolution mechanisms in the event of
disagreement.
Lastly, the context of exploitation of traditional knowledge in Africa alone may, surprisingly, point
towards the necessity of utilising African customary laws and protocols as the protection
mechanism for traditional knowledge. The perspective is clarified once one considers the import
of the tremendous literature covering what has been dubbed the “decolonisation” movement in
nearly all areas of social science study: law, literature, art, history and so on.108 Decolonisation
studies have tended to reveal that there has been a destructive influence by the West across
economic, social and political circles in Africa, lingering vestiges of the violent occupation and
subjugation engendered by colonisation in the twentieth century and before. Further, that power
dynamics in key political and norm-setting institutions across the world have been pre-arranged to
sustain the legacy of subjugation of African institutions, culture, and knowledge systems.
As one of the many flashpoints for decolonisation thought, critique of the prevailing intellectual
property regime has shown that the Global North has been responsible for mass misappropriation
of African traditional knowledge and biological resources. The more relevant point however is the
accusation109 that conventional intellectual property at the international level has remained
oblivious of traditional knowledge with the Global North lacking the willingness to develop a
strong international regime for protection of traditional knowledge and enforcement of attendant
rights.
107
A/RES/61/295.
108
See generally, Motshabi K, ‘Decolonising the university: A law perspective’, 40(1) Strategic Review for Southern
Africa, 104-115, at https://www.up.ac.za/media/shared/85/Strategic%20Review/vol%2040(1)/Mosthabi.pdf, on 12th
March, 2019.
109
See generally, Motshabi K, ‘Decolonising the university: A law perspective’, 40(1) Strategic Review for Southern
Africa.
31
Examples to highlight the observations above in the area of traditional knowledge are rife. These
include the earlier-mentioned case involving the multinational company, Bayer, in Kenya, the
hoodia case in South Africa,110 and the katempfe and serendipity case111 to name just a few.
The central theme in these cases is the claim that traditional knowledge and innovations about the
medicinal, cultural, cosmetic and other kinds of value have been widely misappropriated.112
2.5 Conclusion
The existing legal framework on traditional knowledge demonstrates wide consensus that a sui
generis regime is critical to the protection and management of traditional knowledge held by
indigenous and local communities.
Various approaches to sui generis protection have been proposed, all with notable strengths as well
as some noticeable gaps. Human rights law proposes an approach to sui generis protection centred
on the right to property and the right to a clean and healthy environment. However, it is clear that
these two rights neither capture the entire content of traditional knowledge, nor lead to any unique
institutional mechanism for protecting traditional rights that is not already within the existing
formal legal system. Intellectual property tools, specifically the commons model, may provide
unique legal protection by being a source of both negative and positive protection of traditional
knowledge.
African Customary Law may provide a wide array of benefits in the same endeavour, not least
because the very definition of what is “traditional” in the knowledge and expressions of
110
This is a plant which served as food and water for the San hunters and gatherers in the Kalahari Desert for ages. It
is a hunger and thirst suppressant, and these properties were utilised by San hunters. The plant’s composition as an
anti-obesity compound is a traditional knowledge of the San people, though restricted to a certain cultural form of life.
Knowledge gathered from the San led to laboratory research commissioned by the Council for Scientific and Industrial
Research (CSIR), leading to the development and patenting of a drug, P157, by a British pharmaceutical company.
The San people were not consulted in this process. See, generally, Amusan L, ‘Politics of biopiracy: An adventure
into hoodia/xhobia patenting in Southern Africa’, 14(1) African Journal of Traditional, Complementary and
Alternatve Medicines, 2017.
111
The kantempfe and serendipity berries have long been used by African peoples for their sweetening properties. The
University of California and Lucky Biotech, a Japanese corporation, were granted a patent for the sweetening proteins
naturally derived from these plants. Ferris has noted that it is said thaumatin, the extract that makes katempfe sweet,
is two thousand times sweeter than sugar, and is calorie-free. The relevant patent covers any transgenic plant
containing the derived sweetening proteins. No attempts have been made to share benefits with local communities.
Law Journal, 2004, 242-255, 244.
112
See Ferris L, ‘Protecting traditional knowledge in Africa: Considering African approaches’, 4 African Human
Rights Law Journal, 2004, 242-255, 244.
32
communities may be dependent on operation of various customary law rules and norms, as may
the procedural and dispute resolution mechanisms. Accordingly, African Customary Law dictates
must, in the various ways in which it can, form the fabric of a protection regime for traditional
knowledge.
The next Chapter will analyse the historical treatment of African Customary Law in Personal Law
regimes applying it as their defining regimen. Particularly, the concept of inclusive subordination
discussed earlier will be brought out in more detail.
33
CHAPTER THREE
EXPERIENCES IN FORMAL APPLICATION OF AFRICAN
CUSTOMARY LAW IN KENYA
3.1 Introduction
This Chapter investigates the treatment of African Customary Law in Kenyan legal history in the
area of Personal Law. The enquiry is specific to this regime since in the post-independence era,
African Customary Law has largely only been deployed by statute to cover personal law matters.113
British governance of colonised territories typically began with reception statutes that stipulated
sources of law and their internal hierarchy.
3.2 Application of African Customary Law to Personal Law Regimes in Kenya

The provision applying African Customary Law in Kenya was in the shape of the repugnancy
clause (now under Section 3 of the Judicature) that recognised African customary law with the
voiding proviso. This statutory mandate gave colonial courts broad interpretive discretion, which
they wielded to generate a schematic colonial family law that bolstered colonial domination. They
“did not merely decide cases”, Kang’ara submits, but also “drew conclusions about the validity of
customary law relationships from a system of rules whose integrity and coherence it was
[ostensibly (emphasis mine)] their duty to protect”. Thus, the formal definition of marriage under
English law had essential classical elements such as individualism, free will and exclusivity, a
checklist by which colonial courts found African customary marriages not valid.114
The reality of inclusive subordination in the colonial era may seem incomprehensible given that
the primary enabler of this technique, the colonial state, was no longer in existence after Kenya
obtained independence. However, Kang’ara notes that the resultant problem from the colonial era
was that the ensuing problems from this disharmony only convinced the colonial government of
the superiority of English moral and economic individualism (and conventional intellectual
property tools are modelled around moral and economic individualism).115 Inevitably, then, the
113
This is readily apparent in the class of disputes towards which the Magistrates’ Act (discussed earlier) extends the
reach of African Customary Law.
114
Kang’ara S, ‘Beyond bed and bread: The making of the African state through marriage law reform – constitutive
and transformative influences of Anglo-American legal thought’, 9 Hastings Race and Poverty Law Journal, 353-
396, 357.
115
Kang’ara S, ‘Beyond bed and bread: The making of the African state through marriage law reform – constitutive
and transformative influences of Anglo-American legal thought’, 365.
34
postcolonial doctrinal development of customary marriage law has had the effect of opening up
Western-derived law to influence customary law.116
As a preliminary note to an analysis of African customary law cases, Cotran profoundly comments:
“Those who prophesied the early demise, or the supervening irrelevancy, of customary
laws must admit that the Kenya evidence is against them. What emerges from the cases
reported here is the continuing vigor and relevance, despite all the changes wrought by an
evolving society and governmental legislation, of customary law in the daily lives of people
from all backgrounds and social classes. The major transformation of indigenous land
tenure systems through the Registered Land Act, the adoption of the new law of succession
in 1981, the growth of female as well as male employment, urbanization inter-ethnic
mixing, education, religion, new forms of property and the rest, though traumatic, have not
succeeded in marginalizing the customary laws, though the cases record many examples
of their modification. Even integrating statutes do not necessarily displace customary law
completely.”
It is precisely this fact that “African customary is not displaced completely”, which gives rise to
the idea of inclusive subordination. This is the formal recognition of a regime attended by a (rather
counterintuitive) active ignorance of it, when the application of the same is not considered
convenient.
As a preliminary point, it is worth noting that the critique of the authorities analysed below is not
a critique on the merits of the decisions, per se. In essence the analysis is instead focused on
revealing an implicit and systemic tendency of adjudicative organs to conveniently ignore African
customary law rules and principles and instead substitute them, deliberately or otherwise, with
English law norms. This trend is visible without necessarily saying anything about the merits of
the adjudicative body’s decision, which may at times, nonetheless, be important to consider.
116
See Kang’ara S, ‘Beyond bed and bread: The making of the African state through marriage law reform –
constitutive and transformative influences of Anglo-American legal thought’, 354.
35
Section 7 of the Magistrates’ Courts Act117 provides that a magistrates’ court shall have jurisdiction
in proceedings of a civil nature concerning any of the following matters under African customary
law:
(a) Land held under customary tenure;

(b) Marriage, divorce, maintenance or dowry;
(c) Seduction or pregnancy of an unmarried woman or girl;
(d) Enticement of, or adultery with a married person;
(e) Matters affecting status, and in particular the status of widows and children including
guardianship, custody, adoption and legitimacy; and
(f) Intestate succession and administration of intestate estates, so far as they are not governed
by any written law.
The following analysis considers decisions in the area of marriage, divorce, seduction and
enticement, as well as matters concerning status. Beyond the justification already offered, it is
worth noting that it is mostly decisions in these areas that have been extensively reported.
(I) Seduction or Pregnancy of an Unmarried Woman or Girl

The first case of relevance is Murichu Ichurua -Vs- Sammy Kuria s/o Chege Githinji,118 which was
an appeal against the judgment of a District Magistrate. The appellant was the plaintiff in the lower
court suing the defendant for pregnancy compensation because it was alleged that the defendant
was the father of a child born to the girl, the allegation being that on a specified date the Respondent
and the girl had sexual intercourse and she became pregnant as a result.
In the Resident Magistrate’s decision, ostensibly founded on Kikuyu customary law, he held that
the plaintiff was time barred after six months from the date of sexual intercourse. He also held that
no action could be taken by the father if the girl did not declare the pregnancy to the proposed
defendant or his parents. Both these lines of reasoning were criticised by Porter, R.M. in appeal as
not being founded in the Kikuyu customary law (or not being proved to be), as they were not
included in Eugene Cotran’s Restatement of African Law.119
117
Act No. 26 of 2015. The position was fully similar in the repealed Act.
118
Resident Magistrate’s Court at Thika, Civil Appeal No. 7 of 1980, reported in Cotran E, A casebook on African
customary law, 3-4.
119
See Cotran E, A casebook on African customary law, 4.
36
Despite noting that the District Magistrate’s reasoning was founded on principles alien to
customary law (but, arguably, reposed in English law), the Resident Magistrate proceeded to
uphold the said decision, albeit for different reasons (challenges of evidence).
The second illustrative case is Githirwa Muoya -Vs- Njeri Kamau,120 which was a Court of Review
decision by Ainley, P. in this case the plaintiff alleged that the defendant had seduced her daughter
and made her pregnant. She sued therefor for the customary compensation. A particular passage is
noteworthy:
“The Magistrate to whom [the plaintiff] appealed felt confident that [the witness] was
telling the truth. We do not think that there was any proper basis for his confidence, nor
do we think that he gave any satisfactory reason for reversing the decision of the African
court. Though the custom which governed this case does not require corroboration of the
evidence of a girl who alleges that a particular man is the father of her child, yet in the
great majority of cases of this nature a precedent court will seek for and insist upon
corroboration.”
Despite this decision appearing seemingly sound, it nonetheless demonstrates the shockingly
unchecked propensity of judicial officers to selectively apply dictates of African law after a
convenient sieving exercise. The collateral result is that the rules of African customary law carry
a lesser and lesser binding normative force - in the minds of judicial officers at least - as they can
be bent or adjusted at the officers’ “reasonable” discretion.
Having already established in the Githirwa Case that corroboration of the mother’s testimony was
not a customary law requirement, another case might help to illuminate the statutory position vis-
à-vis the normativity of customary law rules. In George Mwangi -Vs- Maria Wamugori,121 the
appeal arose from proceedings taken under section 3 of the then Affiliation Act122 which provided
as follows:
“If the evidence of the mother is corroborated in some material particular by other
evidence to the satisfaction of the court, it may adjudge the defendant to be the putative
120
Court of Review Case No. 8 of 1965, reported in Cotran E, A casebook on African customary law, 6.
121
Court of Review Case No. 14 of 1965, reported in Cotran E, A casebook on African customary law, 7.
122
Chapter 142, Laws of Kenya (Repealed).
37
father of the child and may also, if it sees fit in all circumstances of the case proceed to
make against him an order for the payment … of certain sums and expenses.”
In giving force to this provision, Ainley, P, remarked as below:
“The African Court has assumed that these very clear provisions preclude any
adjudication and therefore an order, in default of corroboration of the evidence of the
mother. The African Court’s assumption was perfectly correct… We can think of no other
material interpretation of the subsection, and we would also point out that the
interpretation which we have adopted is the interpretation given by the English Courts for
many years to almost precisely similar words in various English Affiliation Acts.”
Very significant in this case, therefore, is the realisation that the law applied, in a customary law
dispute, was a clear and significant variation of what was already the legal position under Kikuyu
customary law. Even more significant is that the relevant court, while adjudicating over a
customary law matter whose customary law rules were clear, elected to be persuaded by English
law principles and English law techniques of legal interpretation and adjudication. In fact, the
Court of Review proceeded, intrusively from an African Customary Law perspective, to rely on
two English cases in supporting its rather flagrant disregard of a customary law rule.123
In any event, as a challenge to the ostensible normative soundness of the English position, the
following dictum of the Court of Review in that case would appear highly suspect as an authority
(worthy enough to displace express African customary law rules):
“Evidence of a conversation with a putative father in which he said to the witness, on his
telling him that he was the father of the child and must keep it, that he would not but would
rather go to America, was held over one hundred years ago in England to be corroboration
of the mother’s story.”
Rather interestingly, the Court proceeded to note that “silence in the face of accusation may amount
to an admission, and therefore may be corroboration…” On that view, it is not clear from the
123
The Court cited Moore -Vs- Hewitt [1947] K.B. 832 and Lawrence -Vs- Ingmire (1869) 33 J.P. 630. In the former
case, there was evidence that over a long period including the time of conception, the mother had associated with the
alleged father, and there was no evidence that she had associated with any other man. In the latter case, admission by
the defendant in cross-examination that he had had connection with the mother at times considerably previous to the
date at which the child must have been begotten, and also at times subsequent to the birth of the child, and that the
mother had had goods from his shop without payment were allowed to be sufficient corroboration.
38
decision what legal authorities would support the idea that silence would amount to admission at
law.
The fourth case in this category is C.T. -Vs- M.W,124 where again the court ignored the treatment
of corroboration in a matter on pregnancy compensation. Although it is conceded that this appeal
was on the sole ground of lack of corroboration, the court curiously failed to address itself to the
question as a customary law question. In fact, it is puzzling that the entire decision of the court
was rendered without a single reference to the African Customary Law, but rather to several
supposedly authoritative English authorities. Invoking the aforementioned Affiliation Act, the
Court proceeded to observe:
“The law in regard to affiliation is not materially different in this country from the law in
force in England, and it is only necessary to refer to two cases125 to show there was ample
corroboration of the complainant’s evidence in this case.”
The fifth case is Esther Karimi -Vs- Fabian Murugu126. The claim by the plaintiff was that on
diverse dates the plaintiff, relying on a verbal promise to marry, permitted the plaintiff to seduce
her and to have sexual intercourse with her, as a consequence whereof she conceived and delivered
a child. The defendant denied these claims despite the plaintiff’s extensive evidence supporting
her position, leading the judge, Waiyaki J, to brand him a “very smooth and blatant liar” who “got
what he wanted by playing a very clever and crafty game.”127
From the onset, it is important to clarify the considerations upon which this case hinged. To start,
the court noted that an action for breach of promise to marry is not recognised in customary law,
whereas the same is recognised in the case of a civil or Christian marriage, which are monogamous.
On first glance, this fact should have made it easy for the court to determine the matter according
to the relevant law on monogamous marriages (as customary law marriages are potentially
polygamous). However it is instructive that the court noted that the evidence was not conclusive
on which kind of marriage the parties intended to contract. Nonetheless, the court proceeded to
124
High Court of Kenya at Nairobi Miscellaneous Appeal No. 254 of 1968, [1969], reported in Cotran E, A casebook
on African customary law, 13.
125
The court in fact ended up referring to three English cases. The first, Moore -Vs- Hewitt has been discussed above.
The second case was Simpson -Vs- Collinson, [1964] 1 All ER 262, and the third case was Cole -Vs- Manning (1877),
2 QBD 611. Both cases were relied upon on the basis that corroboration was found in acts of familiarity.
126
High Court of Kenya at Nairobi Civil Case No. 745 of 1973.
127
Esther Karimi -Vs- Fabian Murugu, reported in Cotran E, A casebook on African customary law, 25.
39
determine the case, primarily, on principles of the English law, despite not being convinced that
the proposed marriage would have been a monogamous one:
“However, I am confronted here with a problem in law. First of all, did the defendant
promise to marry the Plaintiff in church or in the civil registry? The plaintiff says that they
intended to have a church wedding. But very early during her evidence in chief she said
“He said if I became pregnant, we would get married.”
The type of marriage was then not spelled out, which leaves me in doubt as to whether
when the promise was made to her, the parties contemplated a monogamous marriage.
Secondly, if what she says is true, and I have no doubt it is, then I must hold the promise
null and void, since a promise of marriage made in consideration of the promise permitting
the promisor to have carnal intercourse with her or him is [not] valid. I am satisfied that
the plaintiff permitted the defendant to have sexual intercourse with her, because he
promised to marry her if she became pregnant.”
The promise to marry made in consideration of the promise permitting the promisor carnal
intercourse is a principle of the English civil law of marriage. Yet, it was this principle that was
employed in adjudicating this case, despite the court’s concession that the facts did not lend
themselves to the conclusion that the intended marriage would be a civil law marriage.
(II) Essentials of Marriage

Disregard (or diminished regard) for African customary law dictates, in their strict sense, is also
evident in case law on the essentials of marriage.
In Hortensiah Wanjiku Yawe -Vs- Public Trustee,128 Paul Mukambi Yawe, a Ugandan by birth,
and resident in Nairobi, was killed in a motor vehicle accident in Uganda. He was employed as a
pilot by the East African Airways Corporation at the time of his death. He died intestate. The
Public Trustee of Kenya was granted letters of administration to his estate. The report of death of
the deceased to the Public Trustee was made by Hortensia, the appellant, who claimed that she
was the deceased’s widow and that she had four children by him. The Ugandan claimants, on the
128
Court of Appeal for East Africa, Civil Appeal No. 13 of 1976.
40
other hand, gave their particulars to the Public Trustee and also alleged that the appellant was not
married to the deceased.
Kneller, J. in the High Court found that the appellant was not the deceased’s wife according to
Kikuyu customary law129 in that the performance of the Ngurario was not proved to the required
standard:
“Secondly was Hortensiah Wanjiku his wife according to Kikuyu custom? She had to prove
this and the standard required was the usual one on a civil matter, namely, ‘on the balance
of probabilities.’
The custom of Kikuyus for their marriages is documented in the Restatement of African
Law, Kenya I Marriage and Divorce, (1968) by Eugene Cotran Ch. 2 section iv, pp. 15,
16. It was agreed to be so. Evidence was led as to the consent of the parties and their
respective families, the ngurario, the ruracio and so on but was not proved to the standard
required, cf. Mwagiru v. Mumbi [1967] E.A. 639, 642. I answer the second question saying
that Mrs. Hortensia Wanjiku was not the wife of Mr. Paul Yawe, the deceased, by Kikuyu
custom or at all.”
The appellant appealed against the finding that she was not the deceased’s wife. On appeal it was
argued that the learned judge failed to take into account the presumption arising from long
cohabitation.
The position of Kneller, J. on the argument on cohabitation was highlighted during the submissions
on appeal,130 as being that the appellant had taken on herself to prove a Kikuyu customary
marriage, and had failed to do so. There was also doubt whether a presumption arising from long
cohabitation based on English Common Law was an element in Kikuyu customary marriage, and
in any event, it was for the appellant to establish that it was so applicable, which the appellant had
129
The essentials of a valid marriage under Kikuyu law are:
(a) Capacity: the parties must have the capacity to marry and also the capacity to marry each other.
(b) Consent: the parties to the marriage and their respective families must consent to the union.
(c) Ngurario: no marriage is valid under Kikuyu law unless the ngurario ram is slaughtered.
(d) Ruracio: no marriage is valid under Kikuyu law unless a part of the ruracio [dowry] has been paid.
(e) Commencement of Cohabitation: the moment at which a man and a woman legally become husband and wife
is when the man and woman commence cohabitation i.e. under the capture procedure when the marriage is
consummated under the eight days’ seclusion, and nowadays when the bride comes to the bridegroom’s
home.
130
See Cotran E, A casebook on African customary law, 66-67.
41
not done. It was also submitted that the appellant did not rely on cohabitation as a factor in her
favour, and that the matter could therefore not be raised in appeal.
The appellate court held as follows:
“I can find nothing in the Restatement of African Law to suggest that Kikuyu customary
law is opposed to the concept of presumption of marriage arising from long cohabitation.
In my view all marriages in whatever form they take, civil or customary or religious, are
basically similar, with the usual attributes and incidents attaching to them. I do not see
why the concept of presumption of marriage in favour of the appellant in this case should
not apply just because she was married according to Kikuyu customary law. It is a concept
which is beneficial to the institution of marriage, to the status of the parties involved and
to issue of their union, and in my view, is applicable to all marriages howsoever celebrated.
The evidence concerning cohabitation was adduced at the hearing, and formed part of the
issue concerning the fact of marriage, and even if no specific submission on that point was
made by [counsel], I do not think that [counsel] is precluded from relying on it before us.”
Evidently therefore, the provisions of the relevant customary law were here circumvented to afford
the court justifiable cause to impute English law principles on social phenomena meant to be
organised around African customary law. This is more so the case because the alleged marriage in
this case was a Kikuyu customary law marriage,131 not just a marriage generally.
It is perhaps worth mentioning that the debate is still rife in Kenya as to the position of a marriage
by cohabitation vis-à-vis other forms of marriages.132 This would at least suggest that the holding
by the trial court in this case may in context be conceivably good at law, in which case the decision
of the appellate court reversing the earlier decision on the customary law in question would be
questionable. A necessary corollary to that would be that the technique applied by the appellate
court supplanting the authority of the customary law in favour of the English presumption of
cohabitation would be illegitimate.
131
See Cotran E, A casebook on African customary law, 65.
132
The Marriage Act, No. 4 of 2014 defines the term “cohabitation” but does not include the same alongside the
recognised “types” of marriage.
42
In the classical case, Rex v Amkeyo,133 the court refused to accept the legal status of a wife married
under customary law as such (terming her a “concubine”), leading to the absurd outcome of the
wife being compelled to give evidence against her husband, thus openly flouting the common-law
principle of spousal privilege. The postcolonial and modern court, as seen, still retains the heritage
and technique of inclusively subordinating African customary legal forms. The point being
continuously proved by these cases is that, in denying validity to customary marriages or other
legal forms, colonial courts followed ‘careful’ deductive application of law, aiming to make
colonial laws coherent and predictable.
It might be tempting to consider this kind of thinking as confined to a different context and time
in history, and the tensions as only existing in the difficult nature of pluralism that was the mainstay
of colonial law. Interestingly, however, the notable dicta of a postcolonial court in a succession
and family law matter in 2013 proceeded as follows, in JMK v DMK134:
“When the Respondent and the deceased made a decision to solemnise their customary
marriage in church, they unequivocally chose to have their marriage governed by a statute
known as The African Marriage and Divorce Act, Cap 151 of the Laws of Kenya. This
choice removed their marriage from the ambit of Kamba customary law.”
To comprehend the full implications of this logic, it is important to note that the Constitution of
Kenya, promulgated three years before this decision, does not provide a hierarchical ordering of
laws that expressly subordinates African customary law to statutory law. As seen above, the
Constitution does not in principle have a repugnancy clause (per se) on the general applicability
of African customary law. Considering this, it comes as a surprise that a postcolonial court in such
a framework could have no qualms invalidating an existing customary law marriage merely
because it was “solemnised in church”. Were the formalities and processes undergone under
customary law of no legal effect, especially considering that African customary law marriages are
expressly recognised under the Marriage Act?135 It is equally inexplicable that under the same
133
Rex v Amkeyo, (1917) 7 E.A.L.R. (Kenya).
134
JMK v DMK, Civil Appeal No. 7 of 2013.
135
Section 6, Marriage Act, No. 4 of 2014.
43
legislation, it is possible to convert a customary law marriage to a Christian or civil marriage, yet
the reverse is impossible.136
It follows that this study, bottomed on the revelations above regarding the workings of inclusive
subordination, must advance the idea that the competitive or disharmonious coexistence of the
different legal regimes in such a framework can only yield a need for increased state intervention
in creating a proper balance. Having noted the unsuitability of the general intellectual property
regime (primarily directed by formal law and official government structures) to traditional
knowledge in Chapter One, this study notes a crisis for the protection of such knowledge through
African customary law as a sui generis and (relatively) independent regime.
Increased state intervention through formal instruments of law is precisely the antithesis of the
concept of according local communities sui generis rights to their traditional knowledge. This idea
is inspired by the general consensus that African Customary Law must play a driving role, for
reasons discussed earlier, in crafting a sui generis regime for administering communities’
intellectual property resources.
3.3 Conclusion
This Chapter has explored the parallels between various Personal Law regimes legally organised
under African Customary Law. The invariable trend detected is that there is an implicit state project
to systematise phenomena under formal law, including phenomena best left to informal laws. This
practice has the tendency to create disharmonious coexistence between African Customary Law
and statutory law. Naturally, the bigger consequence is that communities applying African
Customary law are excluded from the table of legal pluralism par excellence.
Jurisprudence from African Customary Law court decisions indicates a very diminished level of
reverence accorded to African Customary Law, as a matter of fact. In summary, it has been seen
that Kenyan courts are ready and willing to, when convenient to the interests of the State, abandon
the normative forcefulness of African Customary Law and apply statutory law to phenomena
organised around the former regime of law. It is also evident that this subordination of African
Customary Law is the result of a deliberate state project to elevate formal law, which is more suited
to Western moral and economic individualism.
136
Section 7, Marriage Act, No. 4 of 2014.
44
The next Chapter tries to find linkages between the lessons learnt from formal experiences with
African Customary Law under Personal Law regimes and the modalities of its incorporation to sui
generis regimes for traditional knowledge.
45
CHAPTER FOUR
INCLUSIVE SUBORDINATION AND TRADITIONAL KNOWLEDGE
4.1 Introduction
This Chapter discusses the utility of African Customary Law in protecting traditional knowledge
and considers how the present statutory framework takes such utility into account. It proceeds to
investigate whether the statutory environment is in any perceivable way inclusively subordinating
African Customary Law within the ostensibly sui generis framework.
4.2 African Customary Law and Traditional Knowledge

Presently, literature has already explored the relationship between the workings of African
Customary Law under systems of Personal Law primarily governed by that regime, and the
possible utilisation of the regime in intellectual property discourses. WIPO has, for instance,
investigated the nature of customary law in these systems, namely family law, the law of
succession, the law of land tenure and natural resources among others, including branches of
public law.137 The enquiry is typically towards the end of discovering what lessons these regimes,
which together utilise customary law as their defining regimen, have to offer sui generis systems
under intellectual property law.
WIPO has identified the following as the possible meanings of African Customary Law
constituting a sui generis regime in relation to traditional knowledge:
(i) As a basis for sustainable community-based development, strengthened indigenous

peoples and local communities’ identity, and promotion of cultural diversity;
(ii) As a distinct source of law, legally binding in itself internally and externally;
(iii) As a means of factually guiding the interpretation of laws and principles that apply
beyond the traditional reach of customary law and protocols;
(iv) As a component of culturally appropriate forms of alternative forms of alternative
dispute resolution;
(v) As a condition of access to traditional knowledge and traditional cultural expressions;
and
137
See, generally, WIPO, Customary law, traditional knowledge and intellectual property: An outline of the issues,
2013.
46
(vi) As the basis for continuing use rights, recognised as exceptions or limitations to any
other rights granted over traditional knowledge, traditional cultural expressions or
related and derivative subject matter.
Thus, the mere “respect and recognition” of African Customary Law is not enough to guarantee
its incorporation and utility in a sui generis framework, if its centrality in that system is not
guaranteed.
The existing international and local framework is rife with conventional intellectual property rights
tools being uncritically extended to traditional knowledge. It is precisely this approach to
protection of traditional knowledge that lessens the impact of African Customary Law in
endeavours to protect traditional knowledge in a holistic sense. For instance, under the ARIPO
Protocol, there is a huge overlay of patent law above the ostensible regime meant to address the
specific demands of traditional knowledge. This has a wide array of negative implications.138
Firstly, as will be seen with the Kenyan Act below, the possibility of traditional knowledge being
compulsorily licensed (just like patents) might deter registration of knowledge that might
otherwise be secret. This would in turn hamper collaborative development as in, for instance, the
commons model as a sui generis approach to protection. Secondly, as will be highlighted shortly,
the metric of “insufficient exploitation” leading to compulsory licensing has not in any way been
clarified by law. Thirdly, it leaves up to the rationale of non-traditional authorities what is to
constitute “reasonable economic terms” for the award of a license to third parties, so that traditional
knowledge can be “forcibly” exploited by third parties under compulsory licenses at terms that
may be unacceptable to the traditional community.139
4.3 Illegitimate Legislative Interventions in Kenya Relating to Traditional Knowledge

Traditional knowledge will invariably owe its existence to indigenous and local communities who
have developed it over generations, acquiring, consequently, de facto rights over it. There are
strong moral and legal justifications for retaining control and norm-making at the community
level.140
138
See Kongolo T, African contributions in shaping the worldwide intellectual property system, Routledge, New York,
2013., 98.
139
Kongolo T, African contributions in shaping the worldwide intellectual property system, 98.
140
Swiderska K, Song Y, Argumedo A, Li J, ‘Protecting community rights over traditional knowledge: Implications
of customary laws and practices’, 2009, 5, at
https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwiPk_uj
47
The TK and TCEs Act was enacted with the objective of providing sui generis protection for
traditional knowledge and traditional cultural expressions. The Act aims ‘to provide a framework
for the protection and promotion of traditional knowledge and cultural expressions’ in Kenya,
giving effect to articles 11, 40 and 69(1)(c) of the Constitution 2010.
A critical examination of the Act will reveal subtle invasions by formal law that might compromise
the normative nature of African Customary Law in ordering the protection and management of
First, it is notable that the Act inexplicably confounds, or mixes, ideas of conventional intellectual
property protection and sui generis approaches without going further to harmonise them or restrict
the problematic consequences from the different approaches taken.141 There is an apparent mixing
up of the notion of ‘ownership’ and custodianship in the definition of an ‘owner’ and a ‘holder’
which creates confusion and ambiguity in the law. The relationship between ‘owners’, ‘holders’,
‘custodians’, and ‘members of the communities’ and how they are to be identified is not clear from
the law.142 This confusion is apparent when the law seeks to confer the right to protection of
traditional knowledge on both ‘owners’ and ‘holders’.143 The Swakopmund Protocol avoids this
problem by defining owners as the ‘holders of traditional knowledge’ namely the local and
traditional communities, and recognized individuals within such communities, who create,
preserve and transmit knowledge in a traditional and intergenerational context.’144
Similarly, both moral145 and economic146 sui generis rights akin to IPRs are conferred on ‘owners’
and ‘holders’ of TK (or in their absence, a state agency). There are additional cultural rights in TK
which include any subsisting rights under any law relating to copyright, trademarks, patents,
re3iAhUixoUKHQdWCfAQFjAAegQIBRAC&url=http%3A%2F%2Fpubs.iied.org%2Fpdfs%2F14591IIED.pdf&u
sg=AOvVaw0V-Qi7LY9cGeGMtM0olTsR on 15th January, 2019.
141
Harrington &Hughes ‘The Protection of Traditional Knowledge and Cultural Expressions Bill (2015)’, at
https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=3&cad=rja&uact=8&ved=2ahUKEwiOmM
G9ve3hAhVtxoUKHSFkAKgQFjACegQIAhAB&url=https%3A%2F%2Fipkenya.wordpress.com%2F2015%2F12
%2F16%2Fcomments-on-the-protection-of-traditional-knowledge-and-traditional-cultural-expressions-bill-
2015%2F&usg=AOvVaw2MDp5TsTih0rhLd9wZTN_L, on 15th March, 2019.
142
Harrington &Hughes ‘The Protection of Traditional Knowledge and Traditional Cultural Expressions Bill (2015).
143
The Protection of Traditional Knowledge and Traditional Cultural Expressions Bill , s 9.
144
S 6, Swakopmund Protocol.
145
Protection of Traditional Knowledge and Cultural Expressions Act, ss 19(2) and 21(4).
146
Protection of Traditional Knowledge and Cultural Expressions Act, ss 18, 20, 22 and 24.
48
designs or other intellectual property147 affirming the misguided attempt to treat traditional
knowledge and conventional intellectual property tools as synonymous to each other.
Interestingly, the Act also contemplates the possibility of rights of assignment as obtaining to
traditional knowledge. This position is difficult to reconcile with the well-known character of
holding of trans-generational assets under the African commons, they remain inalienable since
they are held for the benefit of present, past, and future generations.148
Definitionally, the Act runs into even further problems. Traditional knowledge, properly defined,
relates to knowledge that is:
(i) generated, preserved and transmitted intergenerationally for economic, ritual or

decorative purposes;
(ii) is individually or collectively generated;
(iii) distinctly associated with the community from which it emanates from;
(iv) core to the cultural identity of the community and custodianship is managed through
customary practices or protocols.149
Under the definition section in the Act, traditional knowledge is considered to be that
knowledge:150
(a) originating from an individual, local or traditional community that is the result of
intellectual activity and insight in a traditional context, including know-how, skills,
innovations, practices and learning, embodied in the traditional lifestyle of a community;
or
(b) contained in the codified knowledge systems passed on from one generation to another
including agricultural, environmental or medical knowledge, knowledge associated with
genetic resources or other components of biological diversity, and know-how of traditional
architecture, construction technologies, designs, marks and indications.
As is clear, the Act, in defining “traditional knowledge”, confounds various elements by offering
diverse formulations. The definition itself provides two disjunctive formulations. The two
147
Protection of Traditional Knowledge and Cultural Expressions Act, s 28(1).
148
See, generally Chapter 3, Kariuki F, Ouma S and Ng’etich R, Property law, Strathmore University Press, Nairobi,
2016.
149
Ouma M, Lectures on Traditional Knowledge, January 2019 (on file with author).
150
Section 2, The Protection of Traditional Knowledge and Traditional Cultural Expressions Act, 2016.
49
formulations do not include the same elements, and none is comprehensive given the definition
offered above. Notably, the first formulation above omits the intergenerational nature of traditional
knowledge, and does not take into account the centrality of traditional knowledge to the identity
of the relevant community.
Secondly, the inclusion of another section on the “protection criteria”151 for traditional knowledge
confounds things even further, as it is not clear how this is to be reconciled with the definition of
the term offered earlier. Reading that section, it is not clear what purpose an additional definition
of traditional knowledge would be serving.
Thirdly, the Act centralises the authority of management on formal instruments of state within the
formal levels of government. Both the county and national governments are charged with the
responsibility of protecting traditional knowledge. The county government is to inter alia establish
a traditional knowledge repository within a county and to preserve, conserve, protect and promote
the traditional knowledge of communities within the county.152
On its part, the national government is to, inter alia establish and maintain a national TK
Repository at the Kenya Copyright Board (KECOBO) and to preserve, conserve and protect TK
from misuse and misappropriation.153 However, as seen earlier, a proper sui generis regime
founded on African Customary Law must of necessity empower communities to conceive of rights
and manage the resources towards which the right attach according to their own customary norms
and practices. Therefore, communities should bear central responsibility for protecting, conserving
and safeguarding TK and that ‘owners’ or holders within these communities have the right to
prevent misuse and determine access.154 Although registration of TK in the repository is purely
declaratory and does not confer rights in itself,155 the role of communities in establishing the
registers and in the protection and promotion of TK is not clear.
Fourthly, the Act has the rather counterintuitive and draconian provision on compulsory licensing,
which do not easily lend itself to the idea of centering authority in community organs based on
151
See Section 6 of the Act.
152
Protection of Traditional Knowledge and Cultural Expressions Act, s 4.
153
Protection of Traditional Knowledge and Cultural Expressions Act, s 5.
154
Harrington & Hughes ‘The Protection of Traditional Knowledge and Traditional Cultural Expressions Bill (2015).
155
, The Protection of Traditional Knowledge and Traditional Cultural Expressions Bill (2015) ss 2, 4, 5 and 7(7).
50
African Customary Law. Thus, where protected TK is not being sufficiently exploited by the owner
or rights holder, or where the owner or holder of rights in TK refuses to grant licenses for
exploitation, the Cabinet Secretary may, with prior informed consent of the owners, grant a
compulsory licence for exploitation subject to Article 40(3)(b) of the Constitution.’156
It appears a philosophy of ‘property’ common to real property is being applied to TK such that the
latter is treated like a resource that can be alienated/compulsorily acquired from TK holders by the
State. Some concerns arise from this approach. For instance, TK is part of the cultural identity of
a people, an aspect of their right to self-determination and is essential for their survival and
livelihood. Therefore, it cannot be treated like private property with respect to which the State can
exercise its eminent domain powers of compulsory acquisition. Moreover, there is a wrong
assumption that communities will grant free prior informed consent to the compulsory licensing.
This is incorrect as communities have the right not to grant such consent.
In the same token, the degree of ambiguity and uncertainty engendered by the phrase “when the
knowledge is not being sufficiently exploited” appears to be rather intolerable. It is not clear what
the threshold of “sufficient exploitation” is, in order to permit the Cabinet Secretary to license
compulsorily.
4.4 Other Legislative Failures Relating to Traditional Knowledge

Over and above the inadequacies of the Act in relation to the application of African Customary
Law, the Act has been criticised for not providing a holistic and proper protection framework for
traditional knowledge. To begin with, the Act has been criticised for lacking a framework for
implementation and enforcement and being without a clear parent Ministry. Under Section 2 of the
Act, the term “Cabinet Secretary” is defined in an ambiguous way as the Cabinet Secretary
responsible for matters relating to intellectual property rights. This is because the definition could
be interpreted to cover various distinct ministries namely the Ministry of Industrialisation, Arts,
Culture, Agriculture among others.157
156
The Protection of Traditional Knowledge and Traditional Cultural Expressions Bill (2015 s 12(1). See also s 12
(1), Swakopmund protocol.
157
See Nzomo V, ‘Kenya’s Protection of Traditional Knowledge and Cultural Expressions Act’ comes into force’, at
https://ipkenya.wordpress.com/2016/09/23/kenyas-protection-of-traditional-knowledge-and-cultural-expressions-
act-no-33-of-2016-comes-into-force/, on 20th January, 2019.
51
Secondly, another hurdle to the implementation of the Act is that in the event of concurrent claims
by communities, it is not clear whether KECOBO or the concerned county government(s) will
have the primary role of resolving the ensuing disputes.158
Thirdly, there is a lack of harmony between Section of this Act and the provisions of the Copyright
Act relating to folklore. In the latter, the Attorney General is vested with powers to authorise and
prescribe terms and conditions governing specified use of folklore or generation of works
embodying folklore.159
Fourthly, sections 37 to d1 on remedies and sanctions have been called into question for applying
indiscriminately to both third parties as well as bona fide members of a community,160 erasing the
idea that use in a customary manner by members of a community may not amount to violation of
traditional rights.
4.5 Inclusive Subordination and Traditional Knowledge

The normative force of African Customary Law may be felt within a particular indigenous or local
group, yet at the same time carry a legal or moral expectation that it will be recognised beyond the
community level by the formal organs of state.161 Diminished regard for African Customary Law,
its formal recognition notwithstanding, may have several undesirable consequences.
(I) Reduced Exercise of Collective Rights

For indigenous communities holding traditional knowledge, the right to use such knowledge
resides with the traditional owners and custodians of the knowledge. Thus, they have the collective
right to determine how the relevant knowledge is accessed and used by third parties.
Sui generis regimes that regulate biological and genetic resources may therefore require prior
informed consent of traditional communities for access to traditional knowledge. This will,
probably invariably, involve the application of customary law.162 In fact, the position on prior
informed consent is, nonetheless, also enshrined in other instruments of law not dealing
specifically with traditional knowledge. Specifically, the United Nations Declaration on the Rights
158
See Nzomo V, ‘Kenya’s Protection of Traditional Knowledge and Cultural Expressions Act’ comes into force’.
159
See Nzomo V, ‘Kenya’s Protection of Traditional Knowledge and Cultural Expressions Act’ comes into force’
160
See Nzomo V, ‘Kenya’s Protection of Traditional Knowledge and Cultural Expressions Act’ comes into force’
161
162
52
of Indigenous Peoples (UNDRIP) at Article 32 requires that. Particularly, the requirement is that
such processes are to be conducted in accordance with the communities’ appropriate structures
and practices.
As has been seen, traditional holders have the primary right to use their knowledge and delimit
access to it. Presuming a situation in which the holders have granted access to such knowledge or
are predisposed to doing so, the interaction between African Customary Law in that scenario does
not merely entitle those holders to take action to defend appropriated or reproduced material
against inappropriate use, but positively obliges them to take steps, leading in some cases to an
emphasis on custodial responsibilities as against legal entitlements.
The described scenario presents the classical tussle between formal and informal rights, in which
case the latter is usually the loser. In the case of traditional knowledge, it would possibly result in
the reduced capacity of indigenous groups to enforce their collective rights over knowledge,
especially as against third parties with a conceivable legal stake (under formal law).
(II) Diminished Role of Community Adjudication Structures

Many times, African Customary Law will be linked to the particular structures that apply and
transmit law (in its various shapes and formulations) in a trans-generational sense.163 Separating
protection endeavours over traditional knowledge from this fabric may therefore weaken the social
systems uniquely suited to preservation of traditional knowledge in accordance with community
practices. As has been noted, one aspect of recognising the principle of locality164 is that legal
mechanisms, which include sui generis regimes aimed at protecting traditional knowledge, is that
they should not interrupt the ongoing operation of customary laws and practices.165
As the case in point, the Act, in providing sanctions and remedies, primarily focuses on those of a
civil nature, to be administered by civil courts.166 Unsurprisingly, only one sub-section alludes to,
and even then in passing, appropriate customary law structures to resolve disputes. In fact, the
provision is merely that:
163
164
Customary laws will typically be linked to the specific social structures that apply and transmit law in a
transgenerational sense.
165
166
Section 37 and 38, Protection of Traditional Knowledge and Traditional Cultural Expressions Act, 2016.
53
“In addition to the remedies provided under this Act, any dispute may be resolved through-167
(i) Mediation;
(ii) Alternative dispute resolution procedures; or
(iii) Customary laws, practices and protocols not inconsistent with the Constitution.”
Considering the previous analysis of inclusive subordination, it is perhaps not surprising that, even
in its cursory, mere formal recognition of the applicability of African Customary Law and
protocols, the Act finds it important to also require that even these be subjected to a test mirroring
the repugnancy test.
It is submitted that so deep is the entrenchment of this inclusive subordination of customary law
and its structures in the formal law, that even the academically unquestionable utility of African
Customary Law structures finds no place in the extensive statutory provisions ostensibly dealing
with protection of traditional knowledge through African Customary Law.
It may be that the utility of these African Customary Law structures lies not in their machinery,
but rather on the knock-on effect of building confidence and awareness amongst holders of
traditional knowledge. If they believe that their commodity has value, it might in turn promote
their internal preservation and development of traditional knowledge.
On this point, it might be helpful to consider some legal provisions that approximate the inclusion
of all these elements: respect and usage of customary law for prior informed consent, and
mandatory application of customary law in resolving disputes. The Philippines Indigenous
Peoples’ Rights Act of 1997 establishes provides of a right of restitution of cultural, intellectual,
religious and spiritual property taken, amongst others, in violation of customary laws and
customs.168 Prior informed consent regulating access to indigenous knowledge, under this law,
must be secured in accordance with the relevant customary laws.169 Equally important is the
provision that in the case of disputes arising, customary laws and practices are to be used to resolve
those disputes.170
167
Section 40, Protection of Traditional Knowledge and Traditional Cultural Expressions Act, 2016.
168
Section 32, Philippines Indigenous Peoples’ Rights Act.
169
170
54
In the same token, under the Biodiversity Law of Costa Rica,171 community rights of the sui generis
kind are determined by an inclusive process with indigenous and local communities. The law
recognises custom as a source of law for establishing such sui generis rights which exist and are
legally recognised by the mere existence of the community protocol or knowledge. Also, such
recognition does not require “prior declaration, explicit recognition nor official registration”. 172
All of this is a far cry from what the Kenyan Act provides in terms of the relevance and importance
of African Customary Law. This is ironic given that the Act declares its intention of creating a sui
generis regime for traditional knowledge, and proceeds to make various allusions to the importance
of African Customary Law. When it matters, however, the law fails to specifically establish
requirements giving African Customary Law specific normativity and institutional importance.
The show is instead stolen by the County Government, the National Government (through the
Kenya Copyright Board), and formal courts applying civil statutory law. But this observation
cannot at all be shocking to the keen critic; inclusive subordination of African Customary Law has
been a mainstay of Kenya’s legal-political system for decades.
4.6 Conclusion
This Chapter has explored the interaction between traditional knowledge and African Customary
Law. An analysis of the operative regimes of law, regionally and locally, has revealed that there is
a systemic lack of commitment to fully incorporating African Customary Law as the primary
normative regime.
In various ways, there have been illegitimate interventions by the State with regard to legal
protection of traditional knowledge. These include the application of Western philosophical
understandings of property to traditional knowledge, the confounding of traditional knowledge
with intellectual property tools, including compulsory acquisition and assignablility of rights.
Similarly, it is significant that probably all meaningful management, administrative and
adjudicative functions in relation to traditional knowledge are carried out by non-community
actors. The impact of these interventions is the reduced normative significance of African
customary rules and procedures in protecting the subject matter which they are openly
acknowledged to be protecting.
171
Law No. 7788 of 1998, at Articles 82 to 84.
172
55
Failure to fully integrate African Customary Law structures into the workings of traditional
knowledge legislation has the knock-on effect of diminishing the capacity of communities to
exercise their collective rights to such knowledge, to grant free, prior and informed consent, and
to provide appropriate structures for alternative dispute resolution.
56
CHAPTER FIVE
FINDINGS AND RECOMMENDATIONS
5.1 Introduction
This Chapter reflects on the findings of the study as developed and broken down in the previous
chapters. It proceeds to offer some recommendations geared towards making the Kenyan legal
environment on protection of traditional knowledge more receptive to concerns of African
Customary Law.
5.2 Findings
This study has investigated the phenomenon of inclusive subordination and its workings in
Personal Law regimes, as well as possible implications of the same notion on traditional
knowledge protection.
Whether the retention of the repugnancy clause and the uncritical application of the
constitutionality test will significantly impede the achievement of the goals of the Act with regard
to protection of traditional knowledge
Chapter One laid out the background to inclusive subordination and the state of traditional
knowledge in Kenya. It disclosed that there are conceptual differences between conventional
intellectual property tools and traditional knowledge, which difference has precipitated calls for
the protection of the latter through African Customary Law. The Chapter also laid out the
objectives of the research, established the specific questions to be researched, reviewed relevant
literature, and laid out the conceptual framework of the study. Firstly, the research sought to answer
the question whether African Customary Law is the appropriate sui generis regime to protect
traditional knowledge. The second research question was whether the inclusive subordination of
African customary law, embodied in the repugnancy clause and to some extent in the
constitutionality test, is a relevant factor in inhibiting the protection of traditional knowledge.
Thirdly, the research considered the question whether the retention of the repugnancy clause and
the uncritical application of the constitutionality test will significantly impede the achievement of
the Act’s goals to protect traditional knowledge.
Chapter Two analysed the legal and normative foundations of the various sui generis approaches
used (or proposed) to protect traditional knowledge from misappropriation. It distinguished the
57
human rights approach, information communication technology tools, and African Customary
Law. It was established that there are overwhelming reasons for adopting customary law in general
as the integral framework for a sui generis approach, due to its holistic and authentic nature.
This Chapter explored the idea that under African Customary Law, there are unique systems and
structures that provide the most holistic preservation and protection mechanisms regarding
traditional knowledge. Usually, the obligation to ensure that traditional knowledge is used in an
appropriate way will translate into a responsibility on the part of custodians or owners to safeguard
the relevant knowledge. Accordingly, authority will vest in such custodians under an elaborate
system of relationships and authority. It is therefore central to the protection of traditional
knowledge that the individuals and customary institutions that hold the traditional responsibility
remain in control of the dissemination and management of elements of that knowledge. By
providing this assessment, the Chapter answered the first research question in the affirmative by
establishing that sui generis regimes must generally be anchored on customary laws, and in this
case African Customary Law, to be holistic.
Chapter Three entailed an inquiry into the nature of treatment of African Customary Law in
Kenya’s legal history as a pluralistic country. The specific fields of research were Personal Law
regimes, both due to statutory restrictions of the applicability of African Customary Law as well
as the unavailability of reported decisions on that regime outside Personal Law.
The discussion in this Chapter disclosed that there is a systemic lack of commitment to the
comprehensive application of African Customary Law rules and norms in regimes that are
organised around it. The trend is apparent in the jurisprudence of relevant courts traced from the
pre-colonial, colonial and even post-colonial (contemporary) legal eras. In the ensuing analysis,
the Chapter answered the second research question in the affirmative by showing that the
repugnancy clause and the constitutionality test have been employed in a covert way to subdue the
comprehensive application of African Customary Law in various Personal Law regimes.
Chapter Four explored the utility of African Customary Law in protecting traditional knowledge.
It proceeded to investigate whether the present statutory framework on traditional knowledge is
sufficiently inclusive of African Customary Law concerns. Predictably, the findings were that
African Customary Law, despite being formally recognised, is hopelessly relegated to formal civil
law.
58
The Chapter demonstrated that various illegitimate legal interventions have been made in the Act
with regard to legal protection of traditional knowledge. These include the application of Western
philosophical understandings of property to traditional knowledge, the confounding of traditional
knowledge with intellectual property tools, including compulsory acquisition and assignability of
rights. These are all expected to impact, in a negative way, attempts to mainstream the application
of African Customary Law norms to traditional knowledge. Effectively, this Chapter answered the
third research question in the affirmative, by showing that the Act in various ways continues to
embody the inclusive subordination of African Customary Law, extending the same technique to
the protection of traditional knowledge.
The present Chapter concludes the analysis of the study by outlining the findings, offering
recommendations to address the present gaps and legislative failures, and giving concluding
remarks as a general overview.
5.3 Recommendations
The study proposes the following measures to remedy the gaps located:
1. That the formulation of Section 3 of the Judicature Act implying the subordination of
African Customary Law be repealed or amended to bring African Customary Law within
the same legal status of statutory law.
2. That sections 39 and 40 on sanctions and remedies under the Act be reviewed to obligate
the disputants to engage within the alternative dispute resolution frameworks of the
relevant African Customary Law.
3. That section 12 of Act on compulsory licensing be deleted in full, as the same is a
continuing hurdle towards protecting traditional knowledge, representing the failed attempt
to treat traditional knowledge and conventional intellectual property tools as synonymous
to each other.
4. Section 35 of the Act should be reviewed to reduce the latitude awarded to the Cabinet
Secretary vis-à-vis the power of communities and the appropriateness of their African
Customary Law structures. Free, prior and informed consent must be sources from
communities in accordance with their customary laws and the appropriate community
structures.
59
5. Community organisations should be awarded a more elevated consultative role and be
awarded veto powers as against decisions of the Cabinet secretary, the county governments
and the Kenya Copyright Board on matters of management of their traditional knowledge.
6. In applying the constitutionality test, courts of law should be enjoined to refrain from
applying the test in an uncritical manner noting that there is no inherent normative
hierarchy between statutory and customary law, and that the latter regime can stand alone.
5.4 Conclusion
In general, the study has found that there is near-unanimity as regards the importance of African
Customary Law in protecting traditional knowledge. There is, however, little consensus on the
specific ways in which customary law generally and African Customary Law in specific should be
integrated with the formal system of intellectual property law. Despite the invariable formal
recognition of African Customary Law as a critical component of protection mechanisms, there is,
in Kenya at least, a subtle hierarchical ordering of laws that is designed deliberately to subjugate
African Customary Law.
Even more significant is the realization that there is a specific technique of legal interpretation and
adjudication that has historically been the platform for the subtle subjugation of African Customary
Law: inclusive subordination. The analysis of reported African Customary Law decisions by
Kenyan courts made this clear. In those regimes organised under African Customary Law norms,
this technique has had a clear dislocating factor in that the subject matter of regulation is ultimately
subjected to an alien, or at least external, organising rule (i.e. English and statutory law), thereby
weakening the domestic customary structures that are so well-suited to their original mandate.
More specifically, a knock-on effect of this approach to law is that the dynamism of traditional
forms of value, such as traditional knowledge, remain at odds with the legal regime managing
them. Thus, communities are denied, under such a system, the opportunity to be the primary
determinants of the contents of the rights tied to their traditional knowledge. Ultimately, at the
end of the chain the door to unauthorized commercialisation of traditional knowledge would lie
wide open.
60
BIBLIOGRAPHY
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Strathmore University

Electronic Theses and Dissertations

Protecting traditional knowledge in Kenya through

Follow this and additional works at https://su-plus.strathmore.edu/handle/11071/6632

An analysis of inclusive subordination (Thesis, Strathmore University). Retrieved from

Mwangi Claude Kamau

Strathmore Law School

Dr. Robert Muthuri,

Senior Lecturer, Strathmore Law School

Dr. Luis Franceschi,

Dean, Strathmore Law School

Professor Ruth Kiraka,

Dean, Strathmore Law School,

2.5 Conclusion ............................................................................................................................. 32

4.6 Conclusion ............................................................................................................................. 55

1.1 Background to the Study

In this study, “African customary law” is used to mean:

1.2 Background to the Problem

The second provision provides that the courts:

1.3 Statement of the Problem

1.4 Justification of the Study

Misappropriation is inevitable, as the necessary consequence of a weak regulatory framework

1.5 Research Questions

(I) Traditional Knowledge and Customary Law

(II) The Impact of Inclusive Subordination on Customary Law

According to Onyango, repugnancy as a mere revolting against some habit or behaviour is

“Even if he originates from the local community, moreover, there is an enormous

(II) The “Inclusive Subordination” of African Customary Law

1.91 Research Methodology

1.93 Chapter Breakdown

2.2 The Existing Legal Framework

2.4 Various Sui Generis Approaches

(II) Information Communication Technology and Related Tools

Whereas this is an approach to eventually enhance communal management, it is not, strictly

3.2 Application of African Customary Law to Personal Law Regimes in Kenya

(a) Land held under customary tenure;

(I) Seduction or Pregnancy of an Unmarried Woman or Girl

In giving force to this provision, Ainley, P, remarked as below:

(II) Essentials of Marriage

The appellate court held as follows:

4.2 African Customary Law and Traditional Knowledge

(i) As a basis for sustainable community-based development, strengthened indigenous

4.3 Illegitimate Legislative Interventions in Kenya Relating to Traditional Knowledge

(i) generated, preserved and transmitted intergenerationally for economic, ritual or

4.4 Other Legislative Failures Relating to Traditional Knowledge

4.5 Inclusive Subordination and Traditional Knowledge

(I) Reduced Exercise of Collective Rights

(II) Diminished Role of Community Adjudication Structures

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