THE COURT SYSTEMS IN KENYA

THE  STRUCTURE

The Courts operate two levels:  Superior Courts and Subordinate Courts. The important aspects in the Structure of Courts are:

i           The structure – The hierarchy or levels of Courts.

ii         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.  There are two levels of courts Superior Court (consist of Supreme Court, Court of Appeal and High Court) and Subordinate Courts ( Resident Magistrate Court, Kadhi Courts, Court Martials, Tribunals, 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 Magistrate class III which go to Resident 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 Province Kenya where their 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), the Kadhis Court Act (Cap. 11) and the Armed Forces Act (Cap. 199) Laws of Kenya.

SUPERIOR COURTS

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:

i           Determine a case finally.

ii         Order for a trial.

iii        Order for a re-trial.

iv       Frame issues for the determination of the High Court.

v         Receive additional evidence or order that it be taken by another court.

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.

Jurisdiction:

i           The High Court has unlimited original jurisdiction in criminal and civil matters.

ii         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.

iv       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.

v         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).

vi       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

1.   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.
• 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.
• 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 body 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.

2.   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.

3.   Admiralty  Jurisdiction

Section 4 of the Judicature Act Chapter 8 (1967) provide 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”.

4.   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.

5.   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.

6.   Matrimonial  Cases

The court exercises jurisdiction in divorce matters. In exercise of its 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.

7. 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.

INDUSTRIAL COURT OF KENYA

The Industrial 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 labour relations in Kenya. The Industrial Court is a superior court of record with the status of the High Court and shall and exercise 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 Labour relations including:-

(a) disputes relating to or arising out of employment between an employer and an employee (b) disputes between an employer and a trade union. (c) disputes between an employer’s organisation and a trade union’s organization, (d) disputes between trade unions, (e) disputes between employer organisations, (f) disputes between an employer’s organisations, (g) disputes between an employer’s organisation and trade union, (h) disputes between a trade union and a member thereof, (i) disputes between an employer’s organisation or a federation and a member thereof, (j) disputes concerning the registration and election of trade union officials, and (k) 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:- (i) interim preservation orders including injunctions in cases of urgency (ii) a prohibitory order (iii) an order for specific performance (iv) a declaratory order (v) an award of compensation in any circumstances contemplated under the Industrial Court Act or any written Law. (vi) an award of damages in any circumstances contemplated under the Industrial Court Act or any written Law. (vii) 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. (viii) any other appropriate relief as the court may deem fit to grant.

Appellate Jurisdiction The court shall have appellate jurisdiction to hear and determine appeals from:- (a) decisions of the Registrar of trade unions, and (b) any other court, local tribunal or commission and prescribed under any Written Law.

COMPOSITION OF THE COURT

The court shall consist of;

(a) The Principal Judge; and

(b) Such number of Judges as the President may, acting on the recommendations of the Judicial Service Commission, appoint

(1) The Principal Judge shall be elected in accordance with the procedure prescribed in Article 165 (2) of the Constitution.

 (2) 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.

(3) The Principal Judge shall have supervisory powers over the Court and shall be answerable to the Chief Justice.

(4) 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

An Act of Parliament to give effect to Article 162(2)(b) of the Constitution; to establish a superior court to hear and determine disputes relating to the environment and the use and occupation of, and title to, land, and to make provision for its jurisdiction functions and powers, and for connected purposes

SUBORDINATE COURTS

MAGISTRATE COURT

Article 169 1,a of the constitution of Kenya 2010 creates the Magistrate court. This is where majority of the judiciaries cases are heard. Magistrate courts are generally located in every district in Kenya. The presiding judicial officer in Magistrate court could be a Chief Magistrate, Senior Principal Magistrate, Senior Resident Magistrate, Resident Magistrate or Principle Magistrate. Their authorities vary in administrative responsibility and range of fining and sentencing abilities. The Judicature Act is the statute passed by parliament detailing the varying powers and jurisdiction of Magistrates and Judges.

KHADHI COURT

Article 169 1,b of the Constitution of Kenya 2010 creates the Kadhi court. This is a court that hears civil matters relating to Islamic law. The parties involved must all be followers of Islam and all must agree that the matter to be decided under Islamic law. The matter cannot be criminal in nature. The matter must be civil in nature e.g. Divorce, succession etc. The court is headed by a Chief Kadhi and parliament is given the authority to enact laws describing the guidelines, qualification and jurisdiction of this court. Appeals from Kadhi Court are heard by the High Court.

COURTS MARTIAL

Article 169 1,c of the constitution of Kenya 2010 creates the Courts Martial. this is the military court where matters involving members of the Kenya Defense Forces are heard. Appeals from this court are heard by the High Court.