INTRODUCTION AND REFORMS
In Kenya like other Nations in the Continent of Africa before the European Imperialists established (colonized) the African territories, the African Traditional Communities (ATC) used the fora of justice at family, shrines, churches, mosques. ATC also applied other alternative dispute resolution mechanisms that included reconciliation, mediation and arbitration. However, they instituted the Courts Actions as the last resort, because the people since time immemorial were aware of the fact that the Court proceedings were naturally adversarial.
Kenya’s Judiciary has since independence been transformed from a dual to a unified Judicial system which applies both English law and African Customary law. Hitherto, there existed two systems – one for the African native and another for European settlers. In 1967 three major laws were enacted. These were the Judicature Act (Chapter 8), the Magistrates’ Courts Act (Chapter 10) and the Kadhis Courts Act (Chapter 11). These Acts have streamlined the administration of justice in Kenya.
These three statutes repealed all other legislations other than the provisions of in the Lancaster Conference Constitution, by directing the law that was to be applied by the Courts. Kenyan law system today is therefore significantly based on the Constitution of Kenya 2010 and other Acts of Parliament.
Kenya’s Judiciary discharges its mandate through the following branches: the Court Systems (structure), the Judicial Service Commission and The National Council for Law Reporting. That was the old order before Chief Justice (CJ) Will Mutunga took over the realms of power from Justice (Retired) Evans Gicheru. The Judiciary was such that the Office of the Chief Justice operated as a judicial monarch supported by the Registrar of the High Court. Power and authority were highly centralized. Accountability mechanisms were weak and reporting requirements absent. The Judiciary institution had: weak structures, inadequate resources, diminished confidence, deficient in integrity, weak public support and literally incapacitated to deliver justice.
The new Constitution (The Constitution of Kenya 2010) has radically altered ugly State of Judiciary that had been re-designed by the political governing regimes to fail. Now, the Transformation Agenda speared being by Dr. Will Mutunga who assumed the Office Chief Justice on 20th June 2011. The CJ is assisted by Chief Registrar of the Judiciary who is chief administrator and accounting officer of the Judiciary. Take note of the change of designation from Registrar of the High Court to Chief Registrar of the Judiciary!
The Court system has been decentralized with the Supreme Court and the Court of Appeal having their own Presidents and the High Court having a Principal Judge as heads of the respective Institutions. The Judiciary plans to set up a Leadership Committee which will act as a management team for the entire Judiciary once the staff recruitment process and vetting of Judges and Magistrates is finalized. Management Committee will be composed of the CJ as Chair, Deputy Chief Justice (DCJ), President of Court of Appeal, Principal Judge of the High Court and representatives from the magistracy and the paralegal fraternity.
The High Court has been restructured into four divisions: Division of Land and Environment – To make ruling on issues of sustainable development and equitable distribution of resources. Division of Judicial Review. Division of Commercial and Admiralty – To adjudicate commercial disputes and reduce the transaction costs of justice for the private sector. Constitution and Human Rights – To be first instance in constitutional cases; interpreting and enforcing Bill of Rights.
The Judiciary has institutionalized Performance Contracting (PC) by planning to establish a fully fledged directorate of performance management. PC is Result-Based Management (RBM) methodology that has been implemented by the Executive Arm of the Government was vehemently opposed by the Old Guards in the Judiciary. RBM is a participatory team based approach designed to achieve defined results by improving programme and management efficiency, effectiveness, accountability and transparency. Performance based management practices will be applicable to both judicial and administrative staff.
In order to promote sound management practices, the judiciary has also established Transformation Steering Committee and where all stakeholders in the judicial system are represented. The Steering Committee has developed an Integrated Comprehensive and Institutional Transformation Framework that identified 10 clusters for the Strategic Plan.
An Ombudsperson was appointed and began to receive and respond to complaints by staff and the public. Also the Chief of Staff was appointed to oversee the establishment of the Executive Office of the Chief Justice and facilitate the CJ’s numerous roles. It is required that the President and the Principal Judge of Court of Appeal and High Court respectively will appointed their Chiefs of Staff.
The development for the Judicial Training Institute (JTI) is on course. The curriculum is being drafted and the Director has been appointed. The JTI is to become judicial think tank, an institute of excellence, the nerve centre of robust and rich intellectual exchange, where the interface between the judiciary and contemporary issues in the society will occur.
THE STRUCTURE/HIERARCHY OF COURTS IN KENYA
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 Figure: The Court Structure 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.
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.
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.
Text Books Sources
Ashiq Hussein (2003). A Textbook Of General Principles And Commercial Law Of Kenya; East African Educational Publishers. Nairobi. Kampala. Dares Salaam
Josh Joseph Ogola(2005) Business Law; Focus Publications Ltd Nairobi
Tudor Jackson (1992) The Law of Kenya. „3rd Edition‟ Kenya Literature Bureau Publishers, Nairobi Kenya.
Kibaya Imaana Laibuta. Principles of Commercial Law, Law Africa, Nairobi Kenya
Avtar Singh. Law of Contract and Specific Relief, Ninth Edition (2005), Eastern Book Company, Lucknow-India
Marsh and Soulsby. Business Law. Eighth Edition
Keith Abbott, Norman Pendlebury and Kevin Wardman. Business Law. Eighth Edition
Hellen J. Bond and Peter Kay. Business Law, Blackstone Press Ltd. Second Edition
The Constitution of Kenya 2010: http://www.kenyalaw.org/klr/index.php?id=741 accessed on 21st August 2012
The Judiciary of Kenya: http://www.kenyalaw.org/kenyaLawBlog/?p=227 accessed 21st August 2012
Ministry of Justice and Constitutional Affairs : http://www.gjlos.go.ke/gjinner.asp?pcat=agencies&cat=judiciary accessed on 21st August 2012
The Mars Group Kenya: http://judiciary.marsgroupkenya.org/index.php?option=com_content&view=article&id=45&Itemid=37 accessed on 21st August 2012