THE COURT SYSTEMS
ESTABLISHMENT, STRUCTURE, COMPOSITION AND JURISDICTION OF
The Courts operate two levels: Superior Courts and Subordinate Courts. The important aspects in the Structure of Courts are:
- The structure – The hierarchy or levels of Courts.
- Establishment – The composition or who presides in that Court.
iii. Jurisdiction – The powers of different Courts to hear and determine disputes.
Jurisdictions are either Geographical / territorial limits of their powers or Functional powers (to hear Original matter, Appellate matter or both matters or subject matter (whether it is civil or criminal justice) or Pecuniary (the range of monetary or financial value of subject matter).
The figure illustrates the structure and explains the hierarch of the Courts as it is today in Kenya.
The arrow on the figure shows the hierarchy of courts in Kenya. Courts Superior Court (consist of Supreme Court, Court of Appeal and High Court) and Subordinate Courts (Resident Magistrate Court, Kadhi Courts, District Magistrate Courts Classes 1st, 2nd and 3rd.) The arrows show flow of appeal from one level to the next. The arrows represent flow of appeals in both civil and criminal appeals except criminal appeals from District Magistrates courts. District Magistrate courts are situated in all the districts except of District Magistrate Class III which in some sparsely populated Districts especially North Eastern Part of Kenya where their power.
There are two levels of Court Martial, Tribunals, Magistrate class III which go to Resident powers have been delegated by the Chief Justice to the District Officers through notices in the Kenya Gazette. This structure of the courts is based on the provisions of the Constitution, the Magistrates Court Act (Cap. 10), and the Kadhis Court Act (Cap. 11) and the Armed Forces Act (Cap. 199) Laws of Kenya.
THE SUPREME COURT
The Supreme Court of Kenya is established under Article 163 of the Constitution of Kenya. It comprises of 7 (Seven) Judges: the Chief Justice, who is the president of the Court, the Deputy Chief Justice, who is the deputy to the Chief Justice and the vice-president of the court and five other judges.
The Supreme Court is properly constituted for purposes of its proceedings when it has a composition of five judges and has exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of President arising under Article 140 and subject to clause (4) and (5) of Article 163 of the Constitution, appellate jurisdiction to hear and determine appeals from the Court of Appeal and any other court or tribunal as prescribed by national legislation.
Appeals from the Court of Appeal to the Supreme Court are as a matter of right in any case involving the interpretation or application of this Constitution and in any other case in which the Supreme Court, or the Court of Appeal, certifies that a matter of general public importance is involved, subject to clause (5). The Supreme Court may review a certification by the Court of Appeal and either affirms, vary or overturn it.
The Supreme Court may give an advisory opinion at the request of the national government, any State organ, or any county government with respect to any matter concerning county government.
All courts, other than the Supreme Court, are bound by the decisions of the Supreme Court.
THE COURT OF APPEAL
Establishment: The Court of Appeal is established under Article164 of the Constitution of Kenya 2010.
Composition: The Court of Appeal consists of a number of judges, being not fewer than 12 (twelve), as may be prescribed by an Act of Parliament and the Court is to be organized and administered in the manner prescribed by an Act of Parliament. The Court comprises of a President of the Court of Appeal who is elected by the judges of the Court of Appeal from among themselves. The Court of Appeal Judges retire at the age of 74 years.
Jurisdiction: The Court of Appeal is a superior court of record therefore it sets precedents. It has limited original jurisdiction. It was created to hear appeals from the High court. The only moment the Court Appeal can have original jurisdiction is in punishment for contempt of court, and when stating execution of orders of the High Court. Procedure: The practice and procedure of the court of appeal are regulated by the rules of court made by the Rules Committee constituted under the Appellate Jurisdiction Act (Cap. 9). The Act provides that an uneven number of at least three judges shall sit for the determination of any matter by the court. The decision of the court shall be according to the opinion of a majority of the judges who sat for the purposes of determining that matter.
The court has powers to:
- Determine a case finally.
- Order for a trial.
iii. Order for a re-trial.
- Frame issues for the determination of the High Court.
- Receive additional evidence or order that it be taken by another court.
Objective of the Court
These are provided for in Section 3 of the Supreme Court Act, No. 7, of 2011
- Assert the supremacy of the Constitution and the sovereignty of the people of Kenya;
- Provide authoritative and impartial interpretation of the Constitution;
- Develop rich jurisprudence that respects Kenya’s history and traditions and facilitates its social, economic and political growth;
- Enable important constitutional and other legal matters, especially matters on transition to the new Constitution be determined with due regard to the circumstances, history and cultures of the people; and
- Improve access to justice.
THE HIGH COURT
Establishment: The High Court is established under Article 165 and it consists of a number of judges to be prescribed by an Act of Parliament. The Court is organized and administered in the manner prescribed by an Act of Parliament. The Court has a Principal Judge, who is elected by the judges of the High Court from among themselves. Composition: Ordinarily, the High Court is duly constituted by one Judge sitting alone. However there are instances where two or more High Court Judges may be required to determine certain kinds of cases.
Appointment of Judges: Are appointed by the President in accordance with the advice of Judicial Service Commission. They are laid down special qualifications required of a person to be eligible for appointment as a Judge, namely: He / she is or has been a Judge of a Court having unlimited jurisdiction in civil and criminal matters in some part of the Commonwealth or in the Republic of Ireland or a court having jurisdiction in appeals from such a Court or;
He /she is an Advocate of the High Court of not less than seven years standing or;
He /she holds and has held for a period of or periods amounting in aggregate to not less than seven years, one or other of the qualifications specified in Section 12 of the Advocates Act.
- The High Court has unlimited original jurisdiction in criminal and civil matters.
- The High Court has jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened.
iii. The High Court has jurisdiction to hear an appeal from a decision of a tribunal appointed under the Constitution or national legislation to consider the removal of a person from office, other than a tribunal appointed under Article 144.
- The High Court has jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of: the question whether any law is inconsistent with or in contravention of the Constitution, the question whether anything said to be done under the authority of the Constitution or of any law is inconsistent with, or in contravention of the Constitution, any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government, and a question relating to conflict of laws under Article 191;any other jurisdiction, original or appellate, conferred on it by legislation.
- The High Court does not have jurisdiction in respect of matters reserved for the exclusive jurisdiction of the Supreme Court under this Constitution or falling within the jurisdiction of the courts contemplated in Article 162 (2).
- The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court. Also being a Superior court of record means that the decisions of the High Court as precedents, are binding on the subordinate courts by the doctrine of stare decisis.
vii. Although High Court has unlimited original jurisdiction in civil and criminal cases in actual practice, it will hear those criminal cases which cannot be tried by the subordinate courts i.e. murder and treason whereas in civil cases, it has jurisdiction where the value of the subject matter, in dispute exceeds Kshs. 500,000.00. The High
Court has power to pass any sentence authorized by law.
viii. In addition to the ordinary civil and criminal jurisdiction or the High Court, there are other matters, which can only be heard by the High Court. Thus, the High Court enjoys special powers and jurisdiction in the following matters as conferred to it by the constitution and other legislations some of which are given hereinafter:-
High Court Special Powers
- Supervisory Jurisdiction
The Constitution confers specific, powers on the High Court to exercise supervisory jurisdiction in any civil and criminal proceedings before subordinate courts and may make such orders, issue such writs and give such directions as may consider appropriate for the purpose of ensuring that justice is duly administered by such courts. This includes the power of the High Court to transfer proceedings from one court to the other. To invoke the supervisory jurisdiction of the High Court a person must have exhausted all other available remedies and right of appeal. In exercise of its supervisory powers under judicial review, the high court may issue any of the prerogative orders of:
- Mandamus – The literal meaning of mandamus is “we command”. This is an Order issued by the High Court to any person or body commanding him or them to perform a public duty imposed by law or state. The order is available to compel administrative tribunals to do their duty e.g. to compel a licensing board to issue a license on application of him who has met the prescribed criteria.
- Certiorari – The term means to “be informed”. This is an Order issued by the High
Court directed at an inferior court body exercising judicial or quasi-judicial functions to have the records of the proceedings presented to the High Court for the purposes:
To secure an impartial trial, to review an excess of jurisdiction, to challenge an ultra vires act, to correct errors of law on the face of the record. To quash a judicial decision made against the rules of natural justice. An order of certiorari will be wherever anybody of persons having legal authority to determine questions affecting the rights and having a duty to act judicially, acts in excess of their legal authority. It therefore serves to quash what has been done irregularly.
- c. Prohibition – This is an order issued by the High Court to prevent an inferior court or tribunal from hearing or continuing to hear a case either In excess of its jurisdiction or in violation of the rules of natural justice.
- D. Writ of Habeas corpus – Harbeas corpos means „produce the body‟, dead or alive.
This order is issued where the personal liberty of a person is curtailed by arrest and confinement without legal justification. By issuing this order, the High Court calls upon the person holding the bodies to answer by what authority are they continuing to withhold the individual and with the aims at securing release of such persons held apparently without legal justification.
- Interpretation of the constitution
The Constitution provides that where any question as to the interpretation of the constitution arises in any proceedings in any subordinate court, and the court is of the opinion that the question involves a substantial question of law, the court may, and shall if any party to the proceedings so requests, refer the question to the High Court. The High Court shall be composed of an uneven number of judges, not being less than three when it determines the constitutional question referred to it. The decision of the High Court is binding on the Court that referred the question to the High Court and it must dispose of the case in accordance with the High Court’s decision.
- Admiralty Jurisdiction
Section 4 of the Judicature Act Chapter 8 (1967) provides that the High Court will act as a court of admiralty and will decide “matters arising on the high seas or in territorial waters or upon any lake or other navigable inland waters in Kenya”. The law applicable to be exercised “the conformity with international law and the comity of nations”.
- Election jurisdiction
Under the National Assembly and Presidential Election Act, the High court has special powers to hear and determine disputes arising from the national electoral process. The High Court may make an order as it deems fit, including the nullification of the election results upon hearing of a petition presented to it by a voter or loser in the election.
For the High Court to nullify the election of a Member of Parliament, the petitioner must prove that an election offence has been committed. The composition of the High court is that one (1) Judge sits to determine dispute in parliamentary election while Three (3) Judges must sit if it is presidential election. Any appeal on the High Court decision on Presidential election goes to the Court of Appeal where at least five (5) Judges will sit to determine the appeal. Disputes in the election of councilors go to subordinate courts.
- Succession/Probate Jurisdiction
The Probate Division of the High court has jurisdiction to hear any application and determine any dispute and pronounce such decree and issue such orders as my be expedient in inheritance matters e.g. the High Court may issue probate i.e. a person has been validly appointed by a will to administer the property of the deceased.
- Matrimonial Cases
The court exercises jurisdiction in divorce matters. In exercise of it matrimonial jurisdiction, the High Court may issue orders for:
- Dissolution of marriage.
- Nullity of marriage.
- Separation and maintenance (alimony).
- Custody, adoption and guardianship of infants
- Spousal Property and financial adjustments etc
- Other powers
- To protect and enforce Fundamental rights and Freedoms of individuals which are set out in Chapter Four of the Constitution also otherwise referred to as Bill of Rights.
- To hear and determine Bankruptcy proceedings.
- To supervise winding up of dissolved companies.
EMPLOYMENT AND LABOUR RELATIONS COURT
Establishment of the Court
The Employment and Labour Relations court is established in pursuant of Article 162 (2)(a) of the Constitution of Kenya 2010, for the purpose of settling employment and Industrial relations disputes and the furtherance, securing and maintenance of good employment and labor relations in Kenya.
The Employment and Labour Relations Court is a superior court of record with the status of the High Court that exercises jurisdiction throughout Kenya.
Jurisdiction: The court shall have exclusive original and appellate jurisdiction to hear and determine all disputes referred to it in accordance with Article 162 (2) of the Constitution and the Provisions of the Industrial Court Act or any other written Law which extends jurisdiction to the court relating to employment and Labor relations including:-
- Disputes relating to or arising out of employment between an employer and an employee
- Disputes between an employer and a trade union.
- Disputes between an employer’s organization and a trade union’s organization,
- Disputes between trade unions,
- Disputes between employer organizations,
- Disputes between an employer’s organizations,
- Disputes between an employer’s organization and trade union,
- Disputes between a trade union and a member thereof,
- Disputes between an employer’s organization or a federation and a member thereof,
- Disputes concerning the registration and election of trade union officials, and
- Disputes relating to the registration and enforcement of collective agreements.
In exercise of its jurisdiction, the court shall have power to make any of the following orders:-
- Interim preservation orders including injunctions in cases of urgency
- A prohibitory order
- An order for specific performance
- A declaratory order
- An award of compensation in any circumstances contemplated under the Industrial Court Act or any written Law.
- An award of damages in any circumstances contemplated under the Industrial Court Act or any written Law.
- An order for reinstatement of any employee within three years of dismissal, subject to such conditions as the court thinks fit to impose under circumstances contemplated under any written Law.
- Any other appropriate relief as the court may deem fit to grant.
The court shall have appellate jurisdiction to hear and determine appeals from:-
- Decisions of the Registrar of trade unions, and
- Any other court, local tribunal or commission and prescribed under any Written Law.
Composition of the court
The court shall consist of;
- The Principal Judge; and
- Such number of Judges as the President may, acting on the recommendations of the
Judicial Service Commission, appoint
- The Principal Judge shall be elected in accordance with the procedure prescribed in Article 165 (2) of the Constitution.
- The Principal Judge shall hold office for a term of not more than five years and shall be eligible for re-election for one further term of five years.
- The Principal Judge shall have supervisory powers over the Court and shall be answerable to the Chief Justice.
- In the absence of the Principal Judge or in the event of a vacancy in the office of the
Principle Judge, the Judges of the Court may elect any other Judge to have and exercise and perform the powers and functions of the Principal Judge, and who shall be deemed to be the Principle Judge.
ENVIRONMENT AND LAND COURT
The Environment and Land Court as one of the Courts contemplated by article 162(2) is a Superior Court just like its counterpart, the Industrial Court. Both have the same status as the High Court.
The court is established under section 4 of the Environment and Land Court Act No. 19 of 2011. It has jurisdiction to hear any other dispute relating to environment and land.
The jurisdiction of the court is provided under section 13 of the Act. The Court has original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and with the provisions of Act or any other written law relating to environment and land.
The court has powers to deal with disputes relating to land administration and management.
The court is also empowered to hear cases relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land. The court also exercises appellate jurisdiction over the decisions of subordinate courts or local tribunals in respect of matters falling within the jurisdiction of the Court.
The court further exercises supervisory jurisdiction over the subordinate courts, local tribunals, persons or authorities in accordance with Article 165(6) of the Constitution.
The Subordinate courts are the courts established under Article 169 of the Constitution of Kenya 2010. They are;
- The Magistrates’ Courts
- The Kadhis’ Courts
- The Court Martial and
- Any other court or local tribunal as may be established by an Act of Parliament.
1). Criminal Jurisdiction
As a court of first instance, the magistrates’ court has jurisdiction and powers in proceedings of a criminal nature as are for the time being conferred on it by;
(a)The Criminal Procedure Code (Cap.75 of the Laws of Kenya) or
(b)Any other written Law.
2). Civil Jurisdiction
The magistrates’ courts shall have and exercise jurisdiction and powers in proceedings of a civil nature in which the value of the subject matter in dispute does not exceed;
(a) Seven million shillings for a Chief Magistrate
(b) Five million shillings for a Senior Principal Magistrate
(c) Four million shillings for a Principal Magistrate
(d) Three million shillings for a Senior Resident Magistrate
(e) Two million shillings for a Resident Magistrate
Special courts have been established to hear and determine matters filed therein.
- The Anti-corruption Court
- The Children Court
The above courts are manned by magistrates gazetted for that purpose by the Honourable Chief Justice. Magistrates Courts also have jurisdiction to hear and determine traffic matters in the manner provided for under the Traffic Act, Cap.403 of the Laws of Kenya.
Any person who is aggrieved by a decision of the magistrates’ court, arising either from a criminal or civil trial can appeal to the High Court.
Kadhis’ Courts are established under Article 170 of the Constitution. Their jurisdiction is limited to the determination of questions of Muslim Law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim Religion and submit to the jurisdiction of the Kadhis’ courts.
The Court Martial hears cases involving people serving in the Military. They are established under the Armed Forces Act.
Tribunals are bodies established by Acts of Parliament to exercise judicial or quasi-judicial functions. They supplement ordinary courts in the administration of justice. Tribunals, however, do not have penal jurisdiction.
Tribunals, like the courts, have to respect the Bill of Rights in their decisions and not be repugnant to justice and morality or be inconsistent with the Constitution or other laws of the land. Most tribunals are subject to the supervision of the High Court. All tribunals fall under the Judiciary.
JUDICIAL SERVICE COMMISSION
Establishment: It is established by Article 171 of the Constitution.
Under Article 171 (2) or the Act, the Judicial Service Commission shall consist of:
- a) The Chief Justice, who shall be the chairperson of the Commission;
- b) One Supreme Court judge elected by the judges of the Supreme Court;
- c) One Court of Appeal judge elected by the judges of the Court of Appeal;
- d) One High Court judge and one magistrate, one a woman and one a man, elected by the members of the association of judges and magistrates;
- e) The Attorney-General;
- f) No advocates, one a woman and one a man, each of whom has at least fifteen years experience, elected by the members of the statutory body responsible for the professional mutilation of advocates;
- g) One person nominated by the Public Service Commission; and
- h) One woman and one man to represent the public, not being lawyers, appointed by the President with the approval of the National Assembly.
The chief Registrar of the Judiciary shall be the Secretary to the Commission,
Members at the Commission, apart tram the Chief Justice and the Attorney-General, shall hold office, provided that they remain qualified; for a term of 6 years and shall be eligible to be nominated for one further term of five years.
POWERS OF THE COMMISSION
- To act independently, must be under the control or directions of any person or authority.
- To make rules to regulate its procedure
- To delegate powers to its members (judges)
- To act not withstanding a vacancy in its membership.
- To confer powers and impose duties on public service with the president’s consent.
FUNCTIONS OF THE JUDICIAL SERVICE COMMISSION
Under Article 72 of the Constitution, the Judicial Service Commission shall promote and facilitate the independence and accountability of the judiciary and the efficient, effective and transparent administration of justice and shall:
- Recommend to the President Persons far appointment as judges;
- Review and make recommendations on the conditions of service of:-
- Judges and judicial officers, other than their remuneration; and
- The staff of the Judiciary;
- Appoint, receive complaints against, investigate and remove from office or otherwise discipline registrars, magistrates, other judicial officers and other staff of the
Judiciary, in the manner prescribed by an Act of Parliament;
- Prepare and implement programmes tar the continuing education and training of judges and judicial officers; and
- Advise the national government on improving the efficiency of the administration of justice. In the performance of its functions, the Commission shall be guided by the following:-
- Competitiveness and transparent processes of appointment of judicial officers and other staff of the judiciary; and
- The promotion of gender equality.
Generally, the JSC serves the following functions as well:
- Administration: It is the principal administrative organ of the judiciary i.e. administers the judicial department
- Advisory: It advises the President on the appointment of Judges of superior courts.
Its vote is purely advisory.
- Appointment: It engages-Magistrates, High Court Registrars, Kadhis and other judicial staff e.g. personnel, officers. clerks etc. –
- Discipline: It disciplines Magistrates, Registrars, Kadhis and other staff of the department.
THE ATTORNEY GENERAL
Establishment: This office is established by Article 156 (1) of the constitution. It is an office in the public service.
Appointment: Under Article 156 (2), the Attorney-General shall be nominated by the President and, with the approval of the National Assembly, appointed by the President.
Under Article 156 (3) the qualifications for appointment as Attorney-General are the same as for appointment to the office of Chief Justice, i.e.: o At least 15 years experience as a superior court judge; or o At least 15 years’ experience as a distinguished academic, judicial officer, legal practitioner or such experience in other relevant fecal field