Judiciary of Kenya
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The Judiciary of Kenya is the system of courts that interprets and applies the law in Kenya
After the promulgation of the constitution of Kenya 2010 the general public through parliament sought to reform the judiciary. Parliament passed the Magistrates and Judges vetting act of 2011. A major part of reforming the judiciary was the vetting of Magistrates and Judges in an attempt to weed out unsuitable ones. The Judicature Act has also been amended to raise the minimum number of magistrate and Judges allowing more judicial officers to be hired. More magistrates and judges are needed to clear the backlog of cases that have caused great delay in the conclusion of cases and to staff new courts. New courts are needed to bring the courts closer to the people which is in line with devolution a major principle written into the Constitution of 2010. New courts like the High Court opened in Garissa in November 2014 is a good example. In the past residents of North Eastern Kenya had to go all the way to Embu to access a High Court.
The Judiciary of Kenya consists of Superior courts made up of the Supreme Court, Court of Appeals, High Court, Industrial Court, Environment and Land Court. The subordinate courts consisting of Magistrate Court, Courts Martial and Kadhi Court.
Establishment of the Court The Supreme Court is established under Article 163 of the Constitution as the final arbiter and interpreter of the Constitution
Composition of the court. The Court comprises the Chief Justice, who is the President of the Court, the Deputy Chief Justice, who is the Vice-President of the Court and five other Judges.
Jurisdiction Exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of President arising under Article 140 of the Constitution. The Court has appellate jurisdiction to hear and determine appeals from the Court of Appeal and any other court or tribunal as prescribed by national legislation. However appeals can only be;
As a matter of right where the case involves interpretation or application of the Constitution or a matter certified by the Supreme Court or the Court of Appeal as one that involves a matter of general public importance. The Supreme Court may review a certification by the Court of Appeal and either affirm, vary or overturn it. Render advisory opinion at the request of the National Government, any State organ, or any County Government with respect to any matter concerning County Government.
Determine the validity of a declaration of a state of emergency; an extension of such a declaration or any legislation enacted or action taken in consequence of a declaration of a state of emergency. Appeals from a tribunal constituted under Article 168 of the Constitution on removal of Judges from office.
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.
Seat of the Court The Court sits in Nairobi at the Supreme Court building and is deemed to be properly constituted for purposes of its proceedings when five of the judges are sitting. Being the highest court in the land, all other courts are bound by its decisions
- Court of Appeal – will handle appeal cases from the High Court and as prescribed by Parliament. It will constitute not less than 12 judges and will be headed by a President appointed by the Chief Justice.
The High court of Kenya is established under article 165 of the constitution of Kenya. It has supervisory jurisdiction over all other subordinate courts and any other persons, body or authority exercising a judicial or quasi-judicial function. After the promulgation of the constitution of Kenya 2010 and as part of the reforms of the judiciary the High Court expanded to create a dedicated court to deal with issues relating to Labour, Land and the Environment. These courts were given autonomy at the High Court level because the court has unlimited original jurisdiction in civil and criminal matters as per article 165 3,(a) of the Constitution of Kenya 2010 and jurisdiction to hear any question respecting the interpretation of the constitution as per 165 3,(d), and jurisdiction to determine whether a right or fundamental freedom in the bill of rights has been violated, denied, infringed or threatened as per article 165 3,(b), and jurisdiction to hear an appeal from the decision of a tribunal appointed under the constitution to consider the removal of a person from office as per article 165 3,(c).
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.
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.
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
The courts below the High Court are referred to as Subordinate courts.
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.
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.
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.
Administration within the Judiciary
The chief administrator of the Supreme court is the Chief Justice who will be the president of the supreme court. One of his responsibilities is to come up with procedures for running the courts. for example, the children Act gives the chief justice authority to come up with rules on how proceedings involving children should take place. Decisions on staffing, where new courts should be opened etc. Certain situations dictate that the Chief Justice appoint a judge or panel of judges to deal with a specific matter.
Deputy President of the supreme court.
The deputy chief justice shall be the deputy president of the supreme court.
President of the court of Appeals
The court of appeal judges elect a member to deal with administrative issues as well as represent them in the Judicial Service Commission.
Principle Judge of the High Court.
The high court judges elect a member to deal with administrative issues and represent High Court judges on the Judicial Service Commission.
Chief Registrar of the Judiciary.
Article 161 2, c of the constitution of Kenya 2010 provides for the position of Chief Registrar with the responsibility of being the chief administrator and accounting officer of the Judiciary.
Registrar of the Supreme Court
Registrar of the Court of Appeal
Registrar of the High Court
Registrar of Magistrate Court
Judicial Service Commission
An independent Judicial Service Commission has been set up to handle the appointment of judges. They will recommend a list of persons to be appointed as judges by the President.