This theory adopts a more realistic and pragmatic approach to law by considering customary practices and circumstances surrounding a conflict. Basically it evolves on the perception that law is derived from precedents giving it the binding flavour to similar cases. It is for a fact that the main role of the judiciary is to interpret law, however, their actions tend to give life and a practical sense to book law. Supported by the fact that courts are free to use their discretion in determining cases. This theory does not lock out the fact that law can be formulated by other mechanisms but view courts as the ultimate determiners of the legal rights and duties of the parties to a conflict. The focus is then shifted to the effects that law has to a given society with regards to meeting its ever-changing needs.

Justice Holmes, the founder of bad man theory, was of the opinion that law is nothing but a prediction as well as an experience. Viewing it from a bad man’s perspective, the transparency of his suit’s process shall enable him to predict its outcome. Because the bad man gives little importance to, inter alia, morality and focus more on the magnitude of punishment that he shall attract.

In Kenya, the judiciary has been established through article 159 of the Constitution. With the view of exercising judicial authority bestowed upon it by Kenyans being that it is an independent custodian of justice. It has the mandate of formulating and implementing judicial policies in addition to the compilation and dissemination of case law. This theory has blended well with the Kenyan case laws. For instance, in Stephen Odhiambo v Republic [2016] eKLR the appellant was convicted for attempted rape contrary to section 4 of the Sexual Offences Act of 2006 and also charged with assault and battery contrary to section 251 of the Penal Code. Initially, he was sentenced to 10 years imprisonment but later reduced to 8 years upon appeal. In light of the subject matter, R v R marked the evolution of marital rape in which the husband was charged with attempted rape of his wife. Lord Keith cancelled out the assumption that a marriage comes with an implied consent to sex making marital rape claims irrelevant. Arguing that a union is more like a partnership in which the parties are entitled to equal rights and treatment.

Astonishing enough back in September, 1997 the custom was that marital rape suits could actually be filed in court and its victims ended up getting justice. Civil damages were inevitable for rapists even after escaping criminal prosecutions. The Constitution of Kenya, through article 2 (5), gives room for the applicability of common law within its jurisdiction. However, the common law precedents are persuasive in nature thus giving courts a leeway of either to be influenced by their holding or not. Unless they centre on concepts of prerogative rights subject to article 25 of the supreme law. It is for this very reason that despite of marital rape being rather impossible to prove, the victims can still rely on assault and battery as a form of domestic violence that is fully accommodated for in law. Fight against inequality has been going on since time immemorial. There has been a great impact and the change has been seen and experienced continentally. This is no exception to Kenya as a country despite of it being a developing one. However, it fails to accommodate marital rape.

The laws pertaining rape seem to be too rigid as they do not reflect the societies’ daily experiences. Due to this, the victims are shut down in bringing up suits of marital rape as rape within a union’s threshold is quite high. It is so unfortunate that the only way to approach this kind of rape is to sought remedies based on cruelty as an element of domestic violence.