Kenyan Court Structure
The structure of Kenyan Courts
The courts under the Constitution operate at two levels, namely;
Superior and Subordinate courts.
- Superior Courts:
- Supreme Court,
- Court of Appeal,
- High Court,
- Employment and Labor Relations Court
- Environment and Land Court
- Magistrates’ Courts
- Kadhis Courts
- Court Martial, and
- 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
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.
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.
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-
- Disputes relating to offences defined in any Act of Parliament dealing with environment and land; and
- 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;
- Disputes relating to offences defined in any Act of Parliament dealing with employment and labor relations; and
- 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.
- The Anti-Corruption Court
- 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.
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