TOPIC 4: THE STRUCTURE OF KENYAN COURTS

The Kenya Courts are organized in the form of a pyramid with the Supreme Court

at the apex, the Court of Appeal below it and the High Court immediately below it,

the Subordinate Courts consisting of the Magistrates Courts, Court Martial and

the Kadhi’s Court. The structure of the Courts is based on the Constitution, the

Magistrates Courts Act, and the Kadhi’s Courts Act.

THE SUPREME COURTS

Establishment and Composition

The Supreme Court is established under Article 163 of the Constitution which

states that:

―There is established the Supreme Court, which shall consists of-

(a) The Chief Justice, who shall be the President of the Courts;

(b) The Deputy Chief Justice, who shall-

(c)

I. Deputise for the Chief Justice; and

II. Be the vice-president of the Court; and

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 (d) Five other Judges.

―The Supreme Court shall be properly constituted for the purposes of its purposes

of its proceedings if it is composed of five judges.

Jurisdiction

The Supreme Courts shall have-

a) Exclusive original jurisdiction to hear and determine disputes relating to

the elections to the office of President arising under Article 140; and

b) appellate jurisdiction to hear and determine appeals from-

I. The Court of Appeal; and

II. Any other court or tribunal as prescribed by

national legislation.

Appeals shall lie from the Courts of Appeal to the Supreme Courts-

a) As of right in any case involving the interpretation or application of this

Constitution; and

b) In any other case in which the Supreme Court, or the Court of Appeal,

certifies that a matter of general public importance is involved.

c) 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.

d) All Courts, other than the Supreme Court are bound by the decisions of

the Supreme Court.

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 e) The Supreme Court shall make rules for the exercise of its jurisdiction.

An Act of Parliament may make further provisions for the operations of

the Supreme Court.

THE COURT OF APPEAL

Establishment

Article 164(1) of the Constitution establishes the Court of Appeal which states that

'there is established a Court of Appeal which shall be organised and

administered in the manner prescribed by an Act of Parliament '.

Composition

Article 164 (1) (a) of the Constitution states that 'the Court of Appeal shall

consist of the number of Judges not being fewer than twelve ... as may be
prescribed by an Act of Parliament'.

Jurisdiction

Article 164(3) of the Constitution provides that the Court of Appeal 'shall have such

jurisdiction and powers in relation to appeals from:

i. The High Court,

ii. Any other Court or tribunal as prescribed by an Act of Parliament.

Note:

The Court may have jurisdiction as a court of first instance in cases of contempt of

court.

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Contempt of court means any act done inside the Court or within the Court premises

with the intention of obstructing the administration of justice.

The Appellate Jurisdiction Act 1977, provides that 'the Court of Appeal shall have

jurisdiction to hear and determine appeals from the High Court in cases in which an

appeal lies to the Court of Appeal under any law'.

The Act further provides that in the hearing of an appeal in exercise of the

jurisdiction conferred by the Act, the law to be applied shall be the law applicable to

the case while it was being heard in the High Court.

The Criminal Procedure Code provides that if the High Court has heard a criminal

appeal from a lower court, a further special appeal can be made to the Court of

Appeal by either the A.G or the defendant on matters of law only.

The Court cannot hear an appeal on matters of fact or against the sentence, except

where a sentence has been enhanced by the High Court and the Subordinate Court

exceeded its sentencing powers.

The Civil Procedure Act provides that in civil cases, the appeal can be made to the

Court of Appeal on the following grounds.

 The decision being contrary to Law, or some usage having the force of Law.

 The decision having failed to determine some material issues of law or

having the force of law.

 A substantive error or defect in the procedure provided this Act or by

other law for the time being in force, which may possibly have produced

error of defect in the decision of case upon the merits

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Every appeal is brought by way of petition, supported by a memorandum of appeal,

and the Court may:-

 Uphold the decision of the trial Court

 Reverse the decision

 Order a new trial

 Substitute another judgment

The Court of Appeal has no jurisdiction to hear appeals in the following cases.

 Court Martial cases

 Enforcement of fundamental rights and freedoms

 In criminal proceedings, from a conviction on a plea of guilty except as to the

extent or legality of the sentence

 In civil proceedings, there is no appeal in the case of consent or a second

appeal when the value of the subject matter of the original suit does not

exceed Kshs.1000 unless special leave has been granted by the Court of

Appeal

 In respect of a special finding under Section 166 of the Penal Code to the

effect that a person was guilty of the act or omission charged, but was insane.

A special finding is an acquittal not a conviction.

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THE HIGH COURT

INTRODUCTION

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. It

was known as the Supreme Court of Kenya until 1964 and its name has remain

unchanged since then.

It has jurisdiction to hear all criminal and civil cases as well as appeals from the

lower courts. The High Court comprises a maximum of 150 judges and has original

jurisdiction in all criminal and civil matters. The High Court is a premier court in

interpreting the Constitution, hears appeals from subordinate courts and tribunals

and supervises all administrative bodies (judicial review).

High Court divisions include Family, Commercial and Admiralty, Constitutional and

Judicial Review, Land and Environment, Criminal, Industrial and Environmental and

Land Court. There are at least 20 High Court stations countrywide.

The Constitution has also established the Industrial Court and the Land and

Environment Court at the same level as the High Court. Industrial Court deals with

labour and employment matters while the Land and Environment Court deals with

land and environment matters and appeals from all tribunals dealing in land and

environment matters.

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Establishment

The High Court is established by Article165 (1) of the Constitution which states

that 'there shall be a High Court, which shall be organised and administered in

the manner prescribed by an Act of Parliament'.

Composition

Article 165 (2) of the Constitution provides that there shall be a Principal Judge of

the High Court, who shall be elected by the Judges of the High Court from among

themselves. (Herein referred to as Puisne Judges).

Jurisdiction

1) Unlimited Original Jurisdiction

Article 165 of the constitution states that the High Court shall have 'unlimited

original jurisdiction in civil and criminal matters and such other jurisdiction and

powers as may be conferred on it by the constitution or any other law'.

Although the jurisdiction of the High Court is unlimited it will in practice only serve

as a trial court for civil cases in which the amount claimed is more than Shs.3

000,000 and cannot therefore be heard in any Magistrate's Court.

2) Exclusive Jurisdiction (Interpretation of Constitution)

Article 165 (3) of 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

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question to the High Court. For purposes of determining the question referred, it

shall be composed of an uneven number of judges, not being less than three.

The decision of the High Court binds the Court that referred the question to the

High Court and it must dispose the case in accordance with the High Court's

decision.

3) Supervisory Jurisdiction

The High Court has jurisdiction under Article 165 (6) of the Constitution to

supervise any civil or criminal proceedings before any magistrate's court or court-

martial and can make such orders, issue such writs and give such directions as it may

consider appropriate for the purposes of ensuring that justice is duly administered

by such court.

The High court can supervise these proceedings on the request of a person who

cannot get justice through other means. This type of jurisdiction is also exercised

over tribunals and administrative authorities acting judiciary by means of:-

(a) Writ of HABEAS CORPUS (Produce the body)

The Constitution guarantees the personal liberty of the individual and when he is

arrested and kept in confinement without legal justification, he or any other person

on his behalf may apply to the High Court to obtain his release by the issue of the

writ of habeas corpus, directing the person detaining such a person to release him or

have him produced before the High Court.

(b) CERTIORARI (To be informed)

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This is an order issued to an inferior Court or body exercising judicial or quasi-

judicial functions to have the records of its proceeding produced before the High

Court for the following purpose:-

 Secure an impartial trial

 Review an excess of jurisdiction

 Challenge an ultra vires act

 Correct errors of law on the face of record

 Quash a judicial decision given against the rule of law

(c) PROHIBITION
An order of prohibition is issued to prevent an inferior court or tribunal from

hearing or continuing to hear a case either in excess of its jurisdiction or where the

rules of natural justice are violated. It’s of no use when the final decision has been

given.

(d) MANDAMUS (We Command)

Issued to any person or body (not necessarily an inferior court) commanding him or

them to carry out a public duty imposed by Law. It is available to compel an

administrative tribunal to hear to hear an appeal, or to force a Local authority to

produce its accounts for inspection by the rate-payers.

4) Admiralty Jurisdiction
The High Court is constituted as a court of admiralty by Section 4 of the Judicature

Act for the purpose of exercising 'admiralty jurisdiction in all matters arising on

the high seas or in territorial waters, or upon any lake or other navigable inland

waters in Kenya'.

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 The law applicable to such cases is the Admiralty Law of England, but shall be

exercised “in conformity with International Laws and the comity of nations”

5) Jurisdiction In Fundamental Rights And Freedoms Of Individuals

The High Court has the jurisdiction to determine the question whether a right or

fundamental freedom in the bill of rights has been denied, violated infringed or

threatened.

6) Parliamentary election petitions.

The High Court also hears election petitions.

The High Court has jurisdiction to determine whether:

- A person has been validly elected as a member of the National Assembly

- The seat in the National Assembly of a member there of has become vacant

7) Appellate Jurisdiction

The appellate jurisdiction of the High Court is exercised in accordance with the

provisions of the Civil Procedure Code and the Criminal Procedure.

Section 374 of the Criminal Procedure Code provides that in every case, in every

case ―A person convicted in a trial held by a Subordinate Court of the first or

second class may appeal to the High Court‖

Appeals to the High Court from convictions in criminal cases may be on matters of

law or matters of fact.

Where a person has been acquitted by a subordinate court of any offence, or where

a charge has been dismissed, the A.G may appeal to the High Court against such

acquittal. These appeals shall only be on matters of law. The High Court may order a

re-trial but only in cases where the trial was illegal or defective.

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Appeals in civil cases lie in the High Court in any case decided by a Subordinate

Court but not where an order was passed with the consent of all the parties.

An appeal to the High Court from an appellate decision of the Resident Magistrate’s

Court is final.

When a person has been convicted by a Court Martial, he may, with the leave of the

High Court, appeal to the High Court against the conviction, the sentence or both. It

must be lodged within 40 days of the conviction or sentence of the Court Martial.

8) Matrimonial Causes

The Court exercises jurisdiction in matters affecting dissolution and nullity of

marriages.

In exercise of its matrimonial jurisdiction, the Court issues orders for:-

i. Dissolution of marriage

ii. Nullity of marriage

iii. Separation and maintenance (alimony)

iv. Custody, adoption and guardianship

v. Spouse property e.t.c

9) Succession Matters

The High Court has jurisdiction to hear any application and determine any dispute

and pronounce such orders as may be expedient in matters of the administration of

a deceased person’s estate, whether testate or intestate.

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RESIDENT MAGISTRATE'S COURT

Establishment

The Resident Magistrate's Court is constituted by Section 3 (1) of the Magistrate's

Courts Act which provides that 'there is hereby established the Resident

Magistrate's Court, which shall be a court subordinate to the High Court and shall

be duly constituted when held by a Chief Magistrate, a Senior Principal Magistrate, a

Principal Magistrate, a Senior Resident Magistrate or a Resident Magistrate'.

Civil Jurisdiction

The civil jurisdiction of the Resident Magistrate's Court is as follows:

Court held by: Value of Subject Matter

1. Chief Magistrate: 7,000,000

2. Senior Principle Magistrate: 5,000,000

3. Principle Magistrate: 4,000,000

4. Senior Resident Magistrate: 3,000,000

5. Resident Magistrate: 2,000,000

The Chief Justice is empowered, by notice in the Gazette, to increase the above

mentioned limited jurisdiction.

Criminal Jurisdiction

The Chief Magistrate, Senior Principal Magistrate, Principal Magistrate or Senior

Resident Magistrate may adjudicate on felonies and award the following sentences

as prescribed in Section 24 of the Penal Code:-

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  Death

 Imprisonment

 Detention under the Detention Camp Act

 Fine

 Forfeiture

 Payment of compensation

 Any other punishment provided by this Code or any other law

KADHI'S COURT

Establishment

The Kadhi's Courts Act, 1967, S.4 (1) as amended by the Statute Law (Miscellaneous

Amendments) Act 1986 provides that "in pursuance of Article170 of the

Constitution there shall be established such number of Kadhi's Courts as the Chief

Justice may, in consultation with the Chief Kadhi, determine".

The court is presided over by the Chief Kadhi or a Kadhi.

A person to be appointed as a Chief Kadhi or Kadhi should have the following

qualifications.

 Professes to the Muslim religion

 Possesses such knowledge of Muslim law which is applicable to any sect or

sects of Muslims.

Jurisdiction

Article 170 of the Constitution states that 'the jurisdiction of a Kadhi's court shall

extend to the determination of questions of Muslim law relating to:-

 Personal status,

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  Marriage,

 Divorce or

 Inheritance in proceedings in which all the parties profess the Muslim

religion."

Criminal Jurisdiction

Kadhi's Courts have no criminal jurisdiction.

NOTE - Section 5 of The Kadhi’s Court Act provides that nothing shall limit the

jurisdiction of the High Court or of any subordinate Court in any proceeding which

comes before it.

This is to mean the Kadhi’s Courts do not have exclusive jurisdiction and their cases

can be heard by the High Court or other Subordinate Courts.

Appeals from Kadhi’s Court lie with the High Court.

COURT-MARTIAL

Establishment

Established under the Kenya defence forces Act no.25 of 2012

It is a subordinate court.

It is designed for the maintenance of discipline among the members of the Armed

Forces.

Article 169 (1) (c) of the Constitution empowers Parliament to establish court

martial which shall have such jurisdiction and powers as may be conferred by any

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law. Pursuant to this provision, the Kenya defence forces Act it provides that 'a

court-martial may be convened by the Chief of General Staff or by the Commander'.

Part Five of the Act creates Service Offences i.e. crimes that can only be

committed by members of the Armed Forces.

They include:-

i. Treachery – Treason committed by members of the armed forces.

ii. Cowardice

iii. Offences arising out of service

iv. Mutiny and insubordination

v. Disobedience of lawful orders from superiors

vi. Absence and desertion without leave

vii. Offences relating to maligning

viii. Drunkenness and fighting

ix. Rowdiness and quarrelling

x. Offences relating to property belonging to armed forces

Composition

The Court Martial is composed of:-

A presiding officer (who must not be below the rank of a Major) and not less than

two other members,

If an offence attracts death penalty, then there shall be a presiding officer and not

less than four other members

Except with the written consent of the A.G, there shall be a Judge Magistrate or

Advocate (must be advocates of 5 years standing) to give advice on technical

matters.

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The Court may impose the following sentences:-

 Dismissal

 Reduction of Rank

 Capital punishment

 Reprimand

 Fines e.t.c.

The court-martial is an ad hoc court; it is convened from time to time to try any

person who has committed an offence which, under the Act, is tribal by a court

martial. The court is dissolved as soon as the trial is over.

Appeals

Kenya defence forces Act allows a person who has been convicted by a court-

martial to appeal to the High Court either against the conviction, sentence or both.

The Attorney General may also appeal to the High Court within forty days of an

acquittal.

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SPECIAL COURTS

In addition to the courts dealt with above, there exist in Kenya a number of other

institutions which are called "courts" or "tribunals", but which do not form part of

the Kenya judicial system. They are called "courts" because they exercise judicial

or quasi-judicial powers by hearing particular types of disputes or cases.

Technically, however, these institutions are not courts because they do not

administer the law.

For example, when a trade union refers a dispute between its members and their

employers to the Industrial Court, the Court will settle the dispute by following a

procedure which approximates to the procedure followed in a court of law. This is

done primarily as a means of ensuring that each of the parties to the dispute will be

satisfied that it has been given a fair opportunity to present its case. However, if

the court decides to award a salary increase for the employees, it would not be

applying, or administering, a rule of law. This is so because there is no legal rule

which contains, or provides a mechanism for determining, the salary scales for any

class of workers in Kenya. Additionally, the decision cannot be challenged by

recourse to the appellate jurisdiction of any of the courts within the judicial system.

The major examples of such tribunals are:

 The Industrial Court

 Business Premises Tribunal

 Land Tribunal

 Rent tribunal

 Cooperative Tribunal e.t.c

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Advantages of Tribunals

1. Speed - Decisions are fast because the tribunals are not over-burdened with

work.

2. Cheap - The cost of proceeding is lower compared to that of the ordinary

courts.

3. Flexibility – Have some discretionary powers and not bound by the doctrine of

precedent.

4. Informality – Are relatively free from legal technicalities which characterise

ordinary courts

5. Expert knowledge – The Judges or Chairmen of the tribunals are experts in

respective fields.

6. Privacy – Unlike ordinary Courts, proceedings are held only in the presence of

interested parties.

7. Policy and other considerations – They incorporate the policies of relevant

industry in the decision making process hence the decisions are more

balanced.

Disadvantages of Tribunals

i. They are sometimes held in private thus the basic requirements of justice

may not be fulfilled.

ii. In most cases, parties are not permitted to be represented by advocates,

thus they are not sure of their legal rights procedures to follow.

iii. The right to appeal is limited in most of the cases.

iv. The discretion of the tribunal is sometimes so wide that their decisions may

be inconsistent or illegal.

v. The officials do not act impartially in most of the cases.

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THE INDUSTRIAL COURT; (ESTABLISHED BY THE INDUSTRIAL COURT ACT

NO 20 OF 2011)

Establishment of the Court

Section 4. (1) In pursuance of Article 162(2)(a) of the Constitution, there is

established 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.

(2) The Court shall be a superior court of record with the status of the High

Court.

(3) The Court shall have and exercise jurisdiction throughout Kenya.

Composition of the Court

Section 5. (1) 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.

(2) The Principal Judge shall be elected in accordance with the procedure

prescribed in Article 165(2) of the Constitution.

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(3) 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.

(4) The Principal Judge shall have supervisory powers over the Court and shall be

answerable to the Chief Justice.

(5) In the absence of the Principal Judge or in the event of a vacancy in the office

of the Principal 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 Principal Judge.

Jurisdiction of the Court

Section 12. (1) 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 this 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 employers’ organization and a trade unions organization;

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(d) Disputes between trade unions;

(e) Disputes between employer organizations;

(f) Disputes between an employers’ organisation and a trade union;

(g) Disputes between a trade union and a member thereof;

(h) Disputes between an employer’s organisation or a federation and a member

thereof;

(i) Disputes concerning the registration and election of trade union officials; and

(j) Disputes relating to the registration and enforcement of collective

agreements.

(2) An application, claim or complaint may be lodged with the Court by or against an

employee, an employer, a trade union, an employer’s organisation, a federation, the

Registrar of Trade Unions, the Cabinet Secretary or any office established under

any written law for such purpose.

(3) In exercise of its jurisdiction under this Act, the Court shall have power to

make any of the following orders —

(i) Interim preservation orders including injunctions in cases of urgency;

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(ii) A prohibitory order;

(iii) An order for specific performance;

(iv) A declaratory order;

(v) An award of compensation in any circumstances contemplated under this Act or

any written law;

(vi) An award of damages in any circumstances contemplated under this 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; or

(viii) Any other appropriate relief as the Court may deem fit to grant.

(4) In proceedings under this Act, the Court may, subject to the rules, make such

orders as to costs as the Court considers just.

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(ii) The Rent Tribunal

Established under section 4(1) Rent Restrictions Act.

It is presided over by a Chairman or deputy Chairman (Who must be advocates of 5

years standing).

The purpose of the tribunal is to determine reasonable rent for houses and impose

some restrictions regarding dwelling houses.

The tribunal has powers to settle disputes between Landlord and tenants in dwelling

houses other than;-

 Exempted houses

 Dwelling houses let on service tenancy

 Dwelling houses with standard rent not exceeding Kshs. 2,500 per month.

The decision of the tribunal is enforceable by the Subordinate Courts.

All appeals lie at the High Court.

Powers and functions of the tribunal

1. To assess standard rent of premises either on its own motion or on application

by a party to a dispute.

2. To determine the date from which such rent is payable.

3. To apportion service charge between tenants where such services are shared.

4. To facilitate vacant possession of premises

5. To facilitate recovery of arrears of rent by the Landlord

6. Permit levy for distress for rent.

7. To employ valuers, clerks and other officials to enable it discharge its

mandate or obligations

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(iii) The Business Premises Rent Tribunal.

Established under section 11 of the Landlord and Tenants (Shops, Hotels and

Catering Establishments) Act (cap 301)

It has power to settle disputes between landlord and tenants relating to business

premises and which are subject to a controlled tenancy.

The A ct defines a “controlled tenancy‖ as a shop, hotel or catering establishment

which:

 Has not been reduced to writing

 Has been reduced to writing but

1. Is for a period not exceeding 5 years

2. Contains provisions for termination other than for breach of contract

within 5 years from the commencement date.

Composition

Presided over by a Chairman appointed by the Minister and must be an advocate of

three years standing.

It also has two other members who need not be advocates.

The decisions of the tribunal are made on the majority vote, and shall be enforced

by a Subordinate Court in some way as a court decree or order.

An appeal lies to the High Court within 30 days of the decision.

Powers and Functions of the Tribunal

1. To determine whether a tenancy is a controlled tenancy or not

2. Determine or vary the rent payable in respect of a controlled tenancy

3. Fix the amount of service charges if required as per agreement in respect

of controlled tenancy.

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 4. Make orders for the recovery of possession / for the payment of arrears

of rent.

5. Permit levy for distress for rent.

6. Award compensation for any loss incurred by a tenant on the termination

of the tenancy

7. To employ valuers, clerks and other officers.

8. Vary or rescind its orders.

Land Dispute Tribunals

Established under the Land Disputes Tribunal Act

The tribunal exists in every administrative District in Kenya.

It is composed of:

1. A Chairman appointed by the Minister from a panel of elders appointed by the

District Commissioner.

2. Two or Four elders selected by the D.C from the same panel.

It has powers to solve disputes of civil nature relating to:-

 Division boundaries to land including land held in common.

 Claim to occupy or work on land.

 Trespass to land

 Adjudication and distribution of land

 Inheritance of land within its jurisdiction.

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