Abstract:
The transfer of laws and legal systems commonly known as legal transplantation has taken place in Kenya for over half a century. The phenomenon was spearheaded by the fact that colonization was taking place and the systems being applied were those of the British. Presence of the transplanted laws and legal systems is present from the onset as seen in the Judicature Act whereby common law is a recognized source of law. Many jurisdictions are subject to legal transplantation as seen from the existence of two main types of laws in the world, civil and common law.
To begin with, this study will be looking at the word transplantation from its original home, the scientific home in order to understand its jurisprudential underpinning. According to the Cambridge dictionary, to transplant is ‘to move something or someone from one place to another’. Organs in the scientific world are transferred from one patient (mainly known as the donor) to another patient (done). The transplant is thereafter deemed successful only when the organ is received and is able to work in tandem with all other organs that were in that body ab initio. To be understood is the concept that the transplanted organ is to adapt to its new surrounding and not vice versa.
Described as ‘…….vivid imagery taken from the world of anatomy and surgery, the ‘legal transplant’ metaphor has been successful in conveying a wide-spread perception of law as quasi-organic matter, as well as a general idea about the complex and sensitive nature of any attempt to make laws and legal institutions that have evolved in one particular legal and institutional environment, work outside their natural ‘habitat’.1Legal transplantation has been the corner stone of legislating statutes in different parts of the world. As stated earlier, due to the colonization of countries, many colonized nations choose to take up their masters laws, slightly alter them and claim them as their own. An example is the adoption of common law into the common wealth nations. This shall be expounded on further.
