The structure of Kenyan Courts: Summary notes

Kenyan Court Structure

The structure of Kenyan Courts

The structure of Kenyan Courts

Structure of the Courts
The courts have power to hear and determine disputes, primarily of criminal and civil nature. Criminal cases are those in which the State prosecutes a person or an organization for committing an act which is not in the interest of the public, and therefore considered to be an offense against the State.
Civil cases originate from a person who seeks redress for a private wrong such as breach of
contract, trespass, or negligence; or to enforce civil remedies such as compensation, damages or
to stop some action.

The   courts   under  the Constitution  operate  at two  levels,   namely;

Superior and  Subordinate courts.

  1. Superior Courts:
  2. Supreme Court,
  3. Court of Appeal,
  4. High Court,
  5. Employment and Labor Relations Court
  6. Environment and Land Court

Subordinate Courts:

  1. Magistrates’ Courts
  2. Kadhis Courts
  3. Court Martial, and
  4. Any other court or local Tribunal established by an Act of Parliament1

 

1. THE SUPREME COURT

The supreme court is established under Article 163 of the Constitution2 and consists of:

  • (a) The chief justice appointed by the president in accordance with the recommendation of the judicial service commission and with the approval of the National Assembly, and who shall be the president court.
  • (b) The deputy chief justice appointed in the manner prescribed for the appointment of the chief justice and who shall (i) deputies for the chief justice and (ii) be the vice-president of the court and; and
  • (c) Five other judges

The Supreme Court is the highest Court in the Judiciary.  Article 159(1)  of the Constitution of Kenya, 2010 vests judicial authority in the courts and tribunals established by the or under the constitution.   The   Supreme  Court  has  exclusive original  jurisdiction  to  hear   and determine disputes relating to the elections to the office of President.

It hears appeals on cases that have been concluded by the Court of Appeal, issues advisory opinion at the request of the national government, any state organ or any county government with   respect   to   matters   concerning   County   Governments,  in   any   cases   involving   the interpretation or application of the Constitution and in matters of general public importance. The Supreme Court may make rules for the exercise of its jurisdiction6 and an Act of Parliament shall make further provision for its operation.

2. THE COURT OF APPEAL

This court is established under  Article  164 of the Constitution8  as a superior court of record having such jurisdiction and powers in relation to appeals from the high court and otherwise as may be conferred to it by law. Under the same section, the judges of the court of appeal are of such number, not being less that twelve as many be prescribed by parliament. There also exists a president of the court of Appeal who is elected by the judges of the court of Appeal from among themselves.

Article 164(3) provides the jurisdiction of the Court of Appeal as follows:

  • (3) The court of Appeal has jurisdiction to hear appeals from;
  • (a) The high court and
  • (b) Any other or tribunal as prescribed by an Act of Parliament.
  • The  jurisdiction  of  the  court  of Appeal  is not unlimited.  It  has and  can  only exercise such jurisdiction and powers as established by an Act of Parliament, namely the Appellate Jurisdiction Act.  The same is also governed by the court of appeal Rules. On any appeal, the Court of Appeal has the power, as far as its jurisdiction permits, to confirm, reverse or vary the decision of the superior Court (an expression referring to the High Court) with such directions as may be appropriate, to order a new trial and to make any necessary incidental or consequential orders including orders as to costs.

3. THE HIGH COURT 

The High Court is established under  Article 165  of the Constitution13  as a superior court off record, vested with unlimited original jurisdiction in all civil and criminal matters in addition to all other powers as may be conferred on it by the constitution and any other laws. The court of Appeal has in the  Delamere case14  expressed its understanding of the High Court’s unlimited original jurisdiction in the following terms:

The High Court, on the other hand can hear all matters without regard to territory or the subject matter in dispute. In criminal matters, it has jurisdiction to try the pettiest of offenders to the murder. Likewise, in civil matters it has the jurisdiction to try a claim for the meanest amount without regard to the origin of the claim. Of course it does not normally do so; it would be overwhelmed   by   sheer   volume   of   work.   But   it   has   the   jurisdiction   to   do   so.   That   is   our understanding of the phrase ‘……. unlimited original jurisdiction in civil or criminal matters….’

Article 165 (3)15 provides the jurisdiction of the High Court as follows:

(3) Subject to clause (5), the High Court shall have:

  • (a) Unlimited original jurisdiction in criminal and civil matters
  • (b) Jurisdiction to determine the question whether 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   this Constitution   to   consider   the   removal   of   a   person   from   office,   other   than   a   tribunal appointed under Article 144;
  • (d) Jurisdiction to hear any question respecting the interpretation of this Constitution.

 

4. EMPLOYMENT &   LABOUR   RELATIONS   COURT   (FORMERLY   THE INDUSTRIAL COURT)

Established   under  Article   162(2)(a)  of   the   Constitution   of   Kenya   2010   as   well   as   The Employment   &   Labour   Relations   Act   of   201116  –   An  Act   of   Parliament   to   establish   the Employment and Labour Relations Court to hear and determine disputes relating to employment and   labour   relations   and   for   connected   purposes.  Any   disputes   relating   to   employments   is preliminarily held at this court, and any further proceedings are taken to the High Court if the case is not determined to conscience of the complainant.

It is a specialized court with the status of the High Court. According to Section 29 of the Act18, the Court is required to ensure reasonable, equitable and progressive access to judicial services in all counties. The Court has original and appellate jurisdiction to hear and determine all disputes relating to employment and labour relations.19 These include:

  • Disputes relating to or arising out of employment between an employer and an employee;
  • Disputes between an employer and a trade union;
  • Disputes between an employer’s organization and a trade union’s organization;
  • Disputes between trade unions;
  • Disputes between employer organization’s;
  • Disputes between an employers’ organization and a trade union;
  • Disputes between a trade union and a member thereof;
  • Disputes between an employer’s organization or a federation and a member thereof;
  • Disputes concerning the registration and election of trade union officials; and
  • Disputes relating to the registration and enforcement of collective agreements.

The Court can grant conservatory, declaratory, injunction, compelling and compensation orders. It can also make interpretation and enforcement directives.

5.   ENVIRONMENT AND LAND COURT

The Court has original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2) (b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land.21

Jurisdiction

In exercise of its jurisdiction under Article 162(2) (b) of the Constitution, the Court has power to hear and determine disputes, relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources; relating to compulsory acquisition of land; relating to land administration and management; relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests inland; and any other dispute relating to environment and land.

The Court is also empowered to hear and determine applications for redress of a denial, violation or infringement of, or threat to, rights or fundamental freedom relating to a clean and healthy environment under Articles 42, 69 and 70 of the Constitution. The Court may make any order and grant any relief as the Court deems fit and just, including, interim or permanent preservation orders   including   injunctions;   prerogative   orders;   award   of   damages;   compensation;   specific performance; restitution; declaration; or costs. The court also exercise appellate jurisdiction over the decisions of subordinate courts or local tribunals in respect of matters falling within the jurisdiction of the Court.

The court further exercises supervisory jurisdiction over the subordinate’s local tribunals persons or authorities in accordance with Article 16596) of the Constitution.

 

SUBORDINATE COURTS

1. MAGISTRATES’ COURTS

The Magistrates Court is established under of the Constitution of Kenya 201025. It is defined as a subordinate  court established by  Article   169(1)   (a)  of  the   Constitution  as stipulated  by   the Magistrates Court Act.26 The same Magistrate Court establishes classes of courts subordinate to the High Court, they include the following courts;

  • Chief magistrate
  • Senior principal magistrate
  • A principal magistrate
  • A senior resident magistrate; and
  • A resident   magistrate   appointed   in   accordance   with   the   Constitution   and   includes   a person appointed to act in a particular office.

Jurisdiction of Magistrate Courts

There   shall   be   more  activity   in   the   Magistrates’  Courts. The   courts   have   limited   original jurisdiction   in   both   criminal   and   civil   matters.   The   hierarchy   of   the   Magistrates’  Courts   is dependent on pecuniary jurisdiction provided by law.

Civil Jurisdiction

A party may institute a matter in any of the subordinate courts subject to the Civil Procedure Act, which requires suits to be instituted in the court of the lowest grade competent to hear it.

An advocate is, however, at liberty to institute a suit in any one of the subordinate courts if he is of the view that a point of law is involved or for any other sufficient reason31. The Magistrates Courts are empowered to exercise jurisdiction and powers in civil proceedings. The hierarchy of the Magistrates’ Courts is dependent on pecuniary jurisdiction provided by law. The pecuniary jurisdiction is as follows:

  • 20 Million shillings, where the court is presided over by a Chief Magistrate;
  • 15 Million shillings, where the court is presided over by a Senior Principal Magistrate;
  • 10 Million shillings, where the court is presided over by a Principal Magistrate;
  • 7 Million shillings, where the court is presided over by a Senior Resident Magistrate; or
  • 5 Million shillings, where the court is presided over by a Resident Magistrate.

The  Chief  Justice nevertheless  may  from  time  to  time,  by notice in  the  Gazette, revise  the pecuniary   limits   of   the   jurisdiction   aforementioned,   taking   into   consideration   inflation   and change in prevailing economic conditions33. A judge, magistrate or other judicial officer shall be liable to arrest under civil process while going to, presiding in or returning from his court.

An application made to a subordinate court for the arrest of a person or property to be attached therein   and   where   he   or   she   resides   or   property   is   situate   outside   the   local   limits   of   the jurisdiction of the court to which the application is made, the court may in its discretion issue warrant of arrest or make order of attachment and send to the magistrate within the local limits of whose jurisdiction that person resides or the property is situate the warrant or order together with probable amount of costs of the arrest attachment.

A magistrate, any court, registrar of a court, a notary public or commissioner of oaths or any officer who the High Court may appoint in this behalf, may administer the oath to the deponent in case of any affidavit under the Civil Procedure Code.  Magistrate Courts have been mandated to handle African Customary Law matters which are civil in nature and fall under: land held under customary tenure; marriage, divorce, maintenance or dowry; seduction or pregnancy of an unmarried woman or girl; enticement of, adultery with married person; matters affecting status, and in particular the status of widow and children; and intestate succession and administration of intestate estate, so far they are not governed by any written law.

The Constitution of Kenya mandates parliament to enact legislation to give original jurisdiction on to subordinate courts which magistrate courts are part to hear and determine application for redress of a denial, violation or infringement of, a threat to, a right or fundamental freedom in the Bill of Rights. This is fortified by Magistrates Court Act which provides for the same with regards to jurisdiction to hear and determine infringement of a right or freedom.

The law provides that, The Chief Justice of Kenya, may by notice of the Gazette, appoint certain magistrates to reside over cases  involving environment  and  land  matters of any area of  the country. The Magistrate appointed, shall have jurisdiction and power to handle-

  1. Disputes relating to offences defined in any Act of Parliament dealing with environment and land; and
  2. Matters of civil nature involving occupation, title to land, provided that the value of the subject matter does not exceed the pecuniary jurisdiction as set out in the Magistrates’ Courts Act.

The Chief Justice is also mandated by notice in the Gazette to appoint certain magistrate to preside   over   cases  involving employment  and   labor   relations   in   respect   of   any   area   of  the country. They shall have power and jurisdiction to handle;

  1. Disputes relating to offences defined in any Act of Parliament dealing with employment and labor relations; and
  2. Any other dispute as may be designated in a Gazette notice by the Chief Justice on the advice of the Principal Judge.

Appeals for both employment and labor relations and environment and land matters shall lie with the industrial court and environment and labor court respectively.

Special   courts   have   been   established   to   hear   and   determine   matters   filed   therein.

They include;

  1. The Anti-Corruption Court
  2. The Children Court

The above courts are manned by magistrate’s gazette for that purpose by the Honorable Chief Justice. Magistrates Courts also have jurisdiction to hear and determine traffic matters in the manner provided for under the Traffic Act.

2. KADHIS COURT

Kadhis’ Courts  are  established  under  Article  170  of  the Constitution. Their  jurisdiction is 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 Kadhis’ courts.

3. COURTS MARTIAL

The Court Martial hears cases involving people serving in the Military. They are established under the Armed Forces Act.

4. TRIBUNALS

Tribunals are   bodies   established   by  Acts   of   Parliament   to   exercise   judicial   or   quasi-judicial functions. They supplement ordinary courts in the administration of justice. Tribunals, however, do not have penal jurisdiction.

Tribunals,   like   the   courts,   have   to   respect   the   Bill   of   Rights   in   their   decisions   and   not   be repugnant to justice and morality or be inconsistent with the Constitution or other laws of the land. Most tribunals are subject to the supervision of the High Court. All tribunals fall under the Judiciary.

  • Political Parties Disputes Tribunal – PPDT
  • The National Environment Tribunal
  • Sports Disputes Tribunal
  • Cooperative Tribunal
  • Auctioneers Licensing Board
  • Water Appeals Board
  • HIV and AIDS Tribunal
  • Public Private Partnership Petition Committee
  • Rent Restriction Tribunal
  • Business Premises Rent Tribunal
  • Competition Tribunal
  • Standards Tribunal
  • Transport Licensing Appeals Board
  • Industrial Property Tribunal
  • Communication and Multimedia Appeals Tribunal
  • National Civil Aviation Administrative Review Tribunal
  • Legal Education Appeals Tribunal
  • Micro and Small Enterprises Tribunal
  • Education Appeals Tribunal
  • State Corporations Appeals Tribunal
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