About Me
My name is Rita Hellen Mochama. I am a second year Computer Science student at Riara University. In addition to my academic work, I operate a community mediation initiative that assists residents in my neighbourhood with dispute resolution prior to formal legal proceedings. The majority of these cases involve land disagreements or family matters. This initiative was established following my direct observation of a prolonged property dispute within my own family that persisted for three years despite being potentially resolvable through a single informed discussion.
This course was selected because recurring situations in my mediation practice revealed significant gaps in my understanding of the legal frameworks governing the disputes I was facilitating. The course proved substantially more valuable than anticipated and delivered insights that were neither expected nor predictable.
A formative moment occurred early in the semester when a classmate posed a question regarding why certain communities continue to rely on elder councils for land dispute resolution rather than utilising formal courts. The response was not that these communities lacked awareness of the formal system. It was that the formal system had never been designed to accommodate them. This observation fundamentally altered my understanding of the populations I serve, as I had previously assumed participants chose mediation out of preference. Some do. However, a considerable number attend because the formal system has either failed them or they have assessed it as unlikely to succeed on their behalf.
The Practical Significance of Folkways and Mores
Early in the course, we examined the distinction between folkways and mores. Folkways constitute the conventional behaviours governing daily interactions, greeting customs, queuing norms, and similar unwritten social rules. Violations typically result in social disapproval of a mild nature. Mores carry considerably greater weight. Their violation invites active condemnation and, in certain cases, social exclusion.
While this distinction may appear to be foundational material, it has had a meaningful impact on my mediation practice. The majority of conflicts I encounter are not legal in nature. They are violations of mores. When two families dispute a land matter, the statutory position on property ownership is rarely the central issue. The determining factor is typically the community's perception of who holds a legitimate claim based on established custom and precedent. The formal legal system is not equipped to adjudicate such matters. It can evaluate a legal claim. It cannot evaluate a community's deeply held understanding of rightful ownership.
Prior to this course, I attempted to mediate these situations without comprehending the underlying complexity. I now understand that I am positioned between two distinct systems of meaning, neither of which is incorrect but which operate according to fundamentally different logics.
Reconsidering the Nature of Law Through Weber and Black
Max Weber conceptualised law as a system dependent upon enforcement. A rule constitutes law only when supported by a specialised institutional apparatus, courts, police, and related authorities capable of ensuring compliance. Without such infrastructure, a rule remains merely aspirational. Black advanced a more direct formulation. Law is, in its essence, social control exercised by the state. No further qualification is necessary.
I find Black's formulation to be the more honest of the two. Not because Weber's analysis is flawed, but because Black's definition aligns more closely with the realities I observe. When I assess who benefits from the legal system and who is marginalised by it, Black's framework provides the clearest explanation. Law serves those who possess the authority to shape and enforce it. All others are subject to its provisions without meaningful recourse.
The historical analysis of English vagrancy laws reinforced this perspective considerably. The same statutes that compelled feudal labourers to serve their landlords were subsequently repurposed to regulate poverty during the industrial era. The language was revised. The underlying function remained unchanged. The consistent objective was the regulation of access to public space and economic mobility. This pattern is not confined to history. I observe its contemporary manifestation regularly. The same residents who filed police complaints regarding noise during the COVID period now host gatherings without any official response. The law is applied selectively based on the identity of the complainant and the subject of the complaint.
The Concurrent Operation of Four Legal Systems in Kenya
Perhaps the most significant revelation of this course was the discovery that Kenya operates four distinct legal systems simultaneously. Civil Law, Common Law, Islamic Law administered through the Kadhis' courts, and African Customary Law all function within a single national framework. The Judicature Act establishes their hierarchical order. The Constitution occupies the highest position, followed by statutory enactments, then Common Law, then Customary Law, then Islamic Law for matters of marriage and inheritance, and finally international law.
The Kadhis' courts represented an unexpected finding. I had previously assumed they operated as a parallel and private system. This assumption was incorrect. They constitute an integral component of the formal legal architecture, adjudicating marriage and inheritance matters for Muslim citizens in accordance with Islamic law. This means that two residents of the same street may have their domestic disputes resolved under entirely different legal frameworks depending on their religious affiliation. This reality was previously unknown to me.
Common Law constitutes the system with which most Kenyans interact on a daily basis. What I found particularly noteworthy is that Common Law is not codified in any comprehensive document. It evolves through judicial decisions on a case by case basis. Consequently, the legal principles applicable to an individual today may differ from those applicable to another individual tomorrow, should a judicial ruling alter the established precedent. The law changes without any formal legislative process.
International Law and the Structural Challenge of Accountability
International law governs the relationships between sovereign states. Its scope encompasses treaties, human rights obligations, and cross border commercial regulations. When a state violates its international obligations, the available remedies include restitution, compensation, and satisfaction, which typically takes the form of a formal expression of regret.
I did not anticipate this section bearing relevance to my mediation practice. I was mistaken. The fundamental challenge is identical. When the entity responsible for enforcing accountability is also the entity that committed the violation, what recourse exists? At the international level, enforcement depends upon the Security Council, which operates as an assembly of powerful nations with competing interests. At the community level, when the individual who breached an agreement possesses political connections, the formal system frequently declines to intervene.
Accountability mechanisms exhibit the same structural weakness at every scale. They are dependent upon the cooperation of those who hold the greatest power, which is precisely the phenomenon they are intended to constrain.
Article 118 and the Disparity Between Entitlement and Access
Article 118 of the Constitution of Kenya guarantees public participation in the legislative process. In principle, every citizen possesses the right to engage meaningfully with the laws that affect their lives. The 2024 Finance Bill protests provided a stark illustration of what occurs when this right exists in statutory form but the practical infrastructure to exercise it is absent.
I observed this dynamic firsthand within my community. Residents participated in demonstrations. They expressed their positions on social media. They demonstrated genuine concern. However, when I engaged some of them in discussion regarding the specific provisions of the bill to which they objected, the majority were unable to articulate their position. They had absorbed the prevailing sentiment but had not accessed the legislation itself, as it was composed in language inaccessible to those without legal training.
The Constitution confers the right to participate. It does not confer the capacity to participate. These are fundamentally distinct conditions. A decision was made that rendering legislation comprehensible to ordinary citizens was not a priority. This decision transformed a constitutional right into a theoretical abstraction. The existence of a right in statutory form and its realisation in practice are not equivalent. The distance between these two states represents, in my assessment, the most critical area requiring attention.
Cybercrime Law and Its Unexpected Personal Relevance
Kenya enacted the Computer Misuse and Cybercrimes Act in 2018. I initially regarded this section as unlikely to bear upon my personal or professional circumstances. A participant in my mediation group subsequently presented me with documentation of threatening electronic communications from her former spouse and inquired whether legal remedies were available.
Prior to this course, my response would have been limited to advising her to report the matter to the police. Following my engagement with this material, I was able to guide her through the specific provisions of the Act applicable to her situation, the statutory penalties, and the evidentiary requirements she should maintain. The penalty for cyber harassment may extend to ten years of imprisonment or a fine of twenty million Kenyan shillings. This information materially altered her perception of the severity of the matter.
What proved most striking was the extent to which digital communication has become embedded in the disputes I encounter. Screenshots are introduced as evidence. WhatsApp correspondence is distributed without context and generates misunderstanding. Social media posts precipitate confrontations that extend into physical spaces. The digital environment is not a separate domain. It is deeply integrated into every conflict I address, a reality I had not fully appreciated until this course prompted that recognition.
Principal Conclusions
The most consequential shift in my thinking has been the adoption of a consistent analytical habit. When encountering any legal provision, I now ask a fundamental question. Who was this law written for? Not the stated objective. Not the official rationale. Who concretely benefits from its enforcement and who is disadvantaged or excluded by its application.
This question has proven applicable across all contexts. International agreements. Municipal regulations. The discretionary decisions of law enforcement regarding which complaints to prioritise. The variable processing of cases by courts depending on the identity of the petitioner. This is not a question born of cynicism. It is a question of practical necessity. An individual who does not understand whom a law serves cannot determine whether that law will serve them when the need arises.
This course was undertaken as a component of the general education curriculum. It has become a framework I apply on a daily basis, an outcome I did not anticipate and one that has materially changed my approach to both academic study and community engagement.