The Structure and Jurisdiction of Courts in Kenya
Introduction
On 27th August 2010, then
new Constitution was promulgated. As expected of any democracy, the rule of
separation of powers and judicial independence was envisaged in the
constitution to ensure constitutionalism. Judicial independence gave rise to
the concept of approval and vetting public officials [Judicial officers
included] and any presidential appointment.
Several Acts of Parliament have been
enacted after the promulgation of the new Constitution. Amongst these Acts are:
a). The Supreme Court Act No. 7 of 2011
b). The Judicial Service Act No. 1
of 2011
c). The Vetting of Judges and
Magistrates Act No. 2 of 2011
All
which are aimed at ensuring the judicature fabric is properly woven to ensure
expediency.
However, for the purpose of this
assignment, these Acts will not be under study. The main aim is to look at the
structure and jurisdiction of the various courts found in Kenya. The main
reason for this consideration can be found in judicial authority as provided
for in the Constitution. The Constitution stipulates that judicial authority
shall be guided by these principles:
a). Ensuring justice is not delayed
b). That everyone, irrespective of
their status, shall receive justice
c). Justice shall be administered
without undue regard to procedural technicalities
d). That alternative dispute
resolution i.e. mediation, reconciliation, traditional dispute resolution and arbitration be employed and
encouraged. However, it should be noted that traditional
dispute resolution is encouraged provided that:
i). It does not
contravene the Bill of Rights
ii). It is not repugnant
to justice and morality, or if its outcome will be repugnant to justice and
morality
iii). It is not
inconsistent with any written law or the Constitution.
The Constitution provides for access
to justice. It is therefore important to ensure that an individual becomes
aware of the structure of the Kenyan courts in order to understand how they can
gain access to justice, especially in regards to private prosecutions.
System of Courts in Kenya
The Constitution provides
for superior and subordinate courts. The arrangement has taken into
consideration jurisdiction of the courts in a manner that upholds the doctrine
of precedent. Furthermore, the structure of the court system in Kenya is
provided for in the Constitution of Kenya as well as the Judicature Act Cap 8.[1]
The
purpose of segmentation within judicial structure is in many ways of importance
as follows:
a). Validates the jurisdiction and
effective administration of justice.
b). Expedites matters within
specific jurisdiction and especially makes relevant the small claims courts.
c). Provides the escalation
mechanism required to achieve/ exhaust application of rule of law and justice
d). Bring justice closer to the
people within the environments they are in
e). Allows room for growth of
Alternative dispute Resolution mechanisms, Labor Law administration
f). Allows a natural evolvement of
various disciplines of law unique to the area of operations.
g). Gives weight to unique laws such
as Labor laws under the Industrial Court
h). Builds specialized jurisprudence
and contributes to the growth of niche areas of law.
The Superior Courts
The Supreme Court
Establishment
The Supreme Court of Kenya holds the
highest jurisdiction in Kenya. It was established by the Constitution of the
Republic of Kenya, 2010 under Articles 163, 166, and 167. Its decision's are
binding and set precedent on all other courts in the country.
Furthermore The Supreme Court Act No.7 of 2011
was enacted to set out the procedural rules on the conduct of the Supreme Court
in the areas of its defined jurisdiction as set out in the constitution.
Composition
The constituent holders of the
Supreme Court of Kenya as set forth in Article 163 (2). They are:
a). The Chief Justice, who shall be
the president of the court;
b). The Deputy Chief Justice, who
shall—
(i) Deputize for the
Chief Justice; and
(ii) Be the
vice-president of the court; and
c). Five other judges
The Supreme Court is properly constituted
for purposes of its proceedings when it has a composition
of five judges.
Jurisdiction
All courts, other than the Supreme
Court, are bound by the decisions of the Supreme Court (this is possibly to
ensure that the Supreme Court can change/reverse a decision it has made in the
past). Furthermore, the Supreme Court shall make rules for the exercise of its
jurisdiction. The Supreme Court is
constitutionally mandated to:
a). To hear and determine disputes
relating to the elections to the office of the president
arising under Article 140 (1) of the Constitution of the Republic of Kenya,
2010
b). Hear appeals from the Court of
Appeal
c). Hear appeals from any other
court or tribunal as prescribed by national legislation.
However,
the hearing of these two forms of appeal is subject to the following rules:
a). The Supreme Court can hear an
appeal in any case involving the application/interpretation of the proposed
Constitution
b). In any case in which either the
Supreme Court or the Court of Appeal certifies that a matter of general public concern is involved.
However, if the Court of Appeal certifies a matter
to be of general public concern, the Supreme Court can affirm, vary or overturn
such certification by the
Court of Appeal.
c). The Supreme Court may give an
d). The Supreme Court has the very
important function of hearing petitions in the Supreme
Court challenging the election of the President.
The Court of Appeal
Establishment
The Court of Appeal is established under Article164
of the Constitution of the Republic of Kenya, 2010 and section 3(1) of the
Appellate Jurisdiction Act.
Composition
It consists of a number of judges,
being not fewer than twelve and not more than thirty or as may be prescribed by
an Act of Parliament. 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.
Jurisdiction
The Court of Appeal has jurisdiction
to hear appeals from the High Court and any other court or tribunal as
prescribed by an Act of Parliament.
Generally, it’s a court of appellate
jurisdiction and does not hear matters at the first instance; however it may
sit as a court of first instance in cases of contempt of court.
It
has a set of rules (the Court of Appeal rules) which apply specifically to it
and which should be adhered to by any person who appears before it.
In hearing appeals from the High
Court, the Court of Appeal can affirm, overturn or send the appeal back to the
High Court with such orders as it may deem fit and necessary in the
circumstances.
The High Court
Establishment
It is established under Article 165
of Constitution of the Republic of Kenya, 2010 as a court of record.
Composition
The actual number of judges of the
High Court, together with the manner of the Court’s administration and
operation, is to be guided by an Act of Parliament. However the High Court is
to have a Principal Judge elected by the judges of the High Court from among
themselves.
Jurisdiction
The
High Court shall have:
a). Unlimited original jurisdiction
in criminal and civil matters
b). Jurisdiction to determine the
question whether a right or fundamental freedom in the Bill of Rights has been
denied, violated, infringed or threatened;
c). Jurisdiction to hear an appeal
from a decision of a tribunal appointed under the proposed Constitution to consider the removal of a person from
office, except the tribunal to
remove the President from office
d).Jurisdiction to hear any question
respecting the interpretation of the Constitution including the determination of the question whether any law
is inconsistent with or in contravention
of the Constitution;
f).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 national vs. county laws under Article 191.
g).Any other jurisdiction, original
or appellate, conferred on it by legislation.
h). Any matter certified by the
court as raising a substantial question of law under [b] or [d]above shall be heard by an uneven number of
judges, being not less than three, assigned
by the Chief Justice.
i).
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. To this end, the High Court may call
for the record of any proceedings before any subordinate court or person, body
or authority as part of its duties under this clause, and may make any order or
give any direction it considers appropriate to ensure the fair administration
of justice.
Jurisdiction Limitation
The
High Court however, has got no jurisdiction over certain issues. These issues
include:
a). Issues reserved for the
exclusive jurisdiction of the Supreme Court falling within the jurisdiction of the Employment and
Labor Relations Court or the Lands and Environment Court.
The Employment and Labor Court
Establishment
Employment and Labor Relations Court
in Kenya was created by the Employment and Labor Relations Court Act 2011 to
replace the Industrial Court for the purpose of settling employment and
industrial relations disputes and the furtherance, securing and maintenance of
good employment and labor relations in Kenya.
Jurisdiction
The Act gives the court exclusive
original and appellate jurisdiction to hear and determine all disputes referred
to it in accordance with Article 162(2) of the Constitution of the Republic of
Kenya, 2010 and the provisions of the Act or any other written law which
extends jurisdiction to the court on matters relating to employment and labor
relations, including disputes:
a). Relating to or arising out of
employment between an employer and an employee
b). Between an employer and a trade
union
c). Between an employers’
organization and a trade unions organization;
d). Between trade unions
e). Between employer organizations
f). Between an employers’
organization and a trade union
g).Between a trade union and a
member thereof
h). Between an emp1oyer’s
organization or a federation and a member thereof
i). Concerning the registration and
election of trade union officials
j). Relating to the registration and
enforcement of collective agreements.
The Environmental Land and Court Act
2011
Establishment
The court is established by the
Environmental Land and Court Act 2011. The Court shall be a superior court of
record with the status of the High Court.
Composition
The
Court shall sit-
(a)
The Principal Judge; and
(b)
Such number of Judges as may be necessary for the efficient and effective
discharge of the functions of the Court.
Jurisdiction
The Court shall have and exercise
jurisdiction throughout Kenya and shall pursuant to section 26, ensure
reasonable and equitable access to its services in every county.
The
Court, which shall be a superior court with the status of the High Court, shall
have jurisdiction throughout the Republic of Kenya to hear and determine
disputes relating to the environment and the use and occupation of, and title
to land.
ACT
of Parliament to give effect to Article 162(2)(b) of the Constitution of the
Republic of Kenya, 2010; 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 in Kenya
These courts have been created under
Article 169(1) of the Constitution of the Republic of Kenya. They Include:
(a)
The Magistrates courts
(b)
The Kadhis’ courts
(c)
The Courts Martial
(d)
Any other court or local tribunal as may be established by an Act of
Parliament, other than the courts established as required by Article 162(2).
The
Magistrates courts
Establishment
The Constitution[2]
and the Magistrates’ Courts Act establish the Magistrates Act[3].
It
is important to note that the Magistrates courts under Cap 10 Laws of Kenya,[4]
has been divided into Residents Magistrates Courts,[5]
and District Magistrates’ Courts.[6]
Note
however, the District Magistrates’ Courts are to be phased out but they are
currently still in existence.
Composition
The
Resident Magistrates’ Courts shall comprise of:[7]
· Chief magistrate
· A Senior Principal Magistrate
· A Principal Magistrate
· A Senior Resident Magistrate
·
A Resident Magistrate
Whereas
the District Magistrates’ Courts shall be presided over by a
·
District Magistrate
who has been assigned to the district in question by the Judicial Service
Commission.[8]
Jurisdiction
Magistrates’
Courts have unlimited jurisdiction in both criminal and civil matters.
Resident Magistrates’ courts shall have and exercise such jurisdiction and powers in
proceedings of a criminal nature as are for the time being conferred on it by –
(a) The Criminal Procedure Code
(b) Any other written
law.[9]
A district magistrate’s
court shall have and exercise such jurisdiction and powers in proceedings of a
criminal nature as are for the time being conferred on district magistrates’
courts by -
(a)
the Criminal Procedure Code; or
(b)
an order under subsection (2) of this section; or
(c) any other written
law.[10]
However,
it is important to note that the civil pecuniary jurisdiction of the
Magistrates’ Courts was amended by the Statute Law (Miscellaneous Amendments) Act,
2012[11]
under its schedule to read:
“Delete and substitute therefore the following new
section –Civil jurisdiction of Magistrates
Courts
Section 5. 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, and
(e) Two million shillings for a
Resident Magistrate.”
This amendment nonetheless raises
the question as to whether, its failure to repeal section 9 of the Magistrates’
Courts Act that establishes the civil jurisdiction on District Magistrates’
Courts is an indication that the District Magistrates’ Courts are soon being
phased out from the systems of court in Kenya.
The
Kadhi courts
Establishment
The Kadhis Court is established
under Article 170 of the Constitution of the Republic of Kenya and the Kadhis
Courts Act, Cap 11.
Composition
Article 170 establishes Kadhis’ courts, stating
that there will be a Chief Kadhi and at least three other Kadhis, the exact
number being established by an Act of Parliament. The Kadhis must be persons
who profess the Muslim religion and who possess such knowledge of the Muslim
law applicable to any sects of Muslims as qualifies the person, in the opinion
of the Judicial Service Commission, to hold a Kadhi’s court. The Chief Kadhi
and the other Kadhis, or the Chief Kadhi and such of the other Kadhis (not
being fewer than three in number) as may be prescribed under an Act of
Parliament, shall each be empowered to hold a Kadhi’s court having jurisdiction
within Kenya.
Jurisdiction
Under
Article 170 of the Constitution and the Kadhis Courts Act, Cap 11, Laws of
Kenya, the Kadhi’s Court have jurisdiction within Kenya but 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 Kadhi’s courts.
The geographical jurisdictions of
the Kadhi Courts are stipulated under Section 4 of the Kadhi’s Courts Act. Section
5 states that nothing in this section shall limit the jurisdiction of the High
Court or of any subordinate court in any proceeding which comes before it.
Courts Martial
Establishment
It is a subordinate court which has
been established by the Constitution[12],
under article 169 (1) (c) and section 93 of the Kenya Defence Forces Act of
2012.[13]
Notably, the Courts Martial is an ad
hoc court and therefore, section 93(2) states that: “The court martial may sit
in any place, whether within or outside the Republic of Kenya.
Composition
A
court martial shall consist of a presiding officer and[14]––
(a)
not less than four other
members if –
i.
an officer is to be
tried; or
ii.
the only punishment or
the maximum punishment which can be awarded in respect of the charge before the
court is death; or
(b) not
less than two other members, in any other case.
.
There shall be a judge advocate at
each court martial, who shall be a magistrate or an advocate of not less than
10 years standing appointed
by the Chief Justice.[15]
Jurisdiction
The court being an ad hoc court, the
geographical jurisdiction of Courts Martial as stated in Kenya Defence Act, can
either be within or outside Kenya.[16]
Courts Martial have inherent
jurisdiction to hear only matters relating to the service offences outlined in
the Act.[17]
Finally, it is important to note
that a person convicted
by a Court Martial may appeal to the High Court.[18]
Conclusion
Article 2 of the Constitution provides that the
Constitution is the supreme law of the Republic which binds all persons and all
State organs at both levels of government. Further that any law, including
customary law that is inconsistent with the Constitution is void to the extent
of the inconsistency, and any act or omission in contravention of this
Constitution is invalid. This forms the basis of the role of Courts under the
new Constitution.
Courts at all levels will play an integral role to make
decisions that will help to define the Constitution and while at the same
interpreting the many provisions of the priority statutes that have been enacted
or are yet to be enacted whose objective is to fulfill implementation of the
Constitution.
The courts will remain a forum to resolve disputes and to
test and enforce laws in a fair and rational manner. Under the new Constitution
the courts have to take up their new position in developing a new body of
principles for interpreting the new Constitution together with the national and
county legislation.
They will do so without fear or favour as embodied in the
judicial authority guiding principles encapsulated in the new Constitution.
Indeed that is why justice is often symbolized as a blindfolded figure
balancing a set of scales, oblivious to anything that could detract from the
pursuit of an outcome that is just and fair.
Thoughts on the Judicial Structure as a whole
The great problems in Kenya’s
judicial system are delayed justice, and perverted justice. Both are evil.
Recent decisions against sitting Members of Parliament as a result of
improperly conducted elections give us hope that perverted justice is on the
wane. However, delayed justice continues to be a major problem and has indeed
warranted special mention in the Constitution itself. In this regard, it is
commendable that the proposed Constitution encourages other forms of dispute
resolution (so long as they are in line with the law). It will also be
necessary to ensure there are enough judges to hear all the cases that arise,
and that sitting judges. The admission of electronic evidence (Article 260,
read in conjunction with Articles 125 and 195) will hopefully speed up justice
as well.
[1] Article 163 Clause 8-9.
[2] The
Kenyan Constitution 2010 under article 169
[3] Cap 10
Laws of Kenya
[4]
Magistrates Courts Act
[5] Ibid
Part II
[6] Ibid
at section 7
[7] Ibid at section 3(1)
[8] Supra note 5
[9] Supra note 3 at section 4
[10]
Magistrates Courts Act , section 8
[11] No. 12 of 2012
[12] The
Kenyan Constitution 2010
[13] No. 25
of 2012
[14] Ibid
under section 95
[15] Ibid
under section 97
[16] Ibid
under section 93 (2)
[17] Ibid
under sections 16-77
[18] Ibid
under section 177 - 131
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