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CONSTITUTION
JUDICIARY
SUPERIOR COURTS
IN KENYA
THE JUDICIARY UNDER THE NEW
CONSTITUTION
Under section :
162. (1) The superior courts are the Supreme
Court, the Court of Appeal, the High Court and
the courts referred to in clause (2).
SUPREME COURT
163. (1) There is established the Supreme
Court, which shall consists of
(a) the Chief Justice, who shall be the
president of the court;
(b) the Deputy Chief Justice, who shall
(i) deputize for the Chief Justice; and
(ii) be the vice-president of the court; and
(c) five other judges.
(2) The Supreme Court shall be properly
constituted for the
purposes of its proceedings if it is composed of
five judges.
(3) The Supreme Court 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) subject to clause (4) and (5), appellate
jurisdiction to hear and determine appeals
from
(7) For the purposes of clause (6), the High Court may
call for the
record of any proceedings before any subordinate court
or person, body or authority referred to in clause (6),
and may make any order or give any direction it
considers appropriate to ensure the fair administration
of justice.
OTHER FUNCTIONS OF THE HIGH
a) Interpretation of the Constitution
COURT
if the question on the interpretation of the
Constitution arises before a subordinate court
and the court is of the opinion that it involves a
substantial question of the law. The court may
refer it to the High Court for interpretation, but
must do so if any of the parties to the
proceedings so requests.
b) Enforcement of fundamental rights and
freedoms
Under section 84 (1) of the Constitution, the
High Court has original jurisdiction to enforce
c) Presidential and parliamentary election
petitions
The High Court has original jurisdiction to hear
and determination presidential and
parliamentary election petitions. Under section
10 (1) of the Constitution it has jurisdiction to
hear and determine a petition challenging:
1. The nomination of a person to contest a
presidential election
2. The election of a president as a member of the
National Assembly
3. The election of a person to the office of the
President
Under this provision the petitioner must fie only
Under the Constitution the High Court has original
jurisdiction to hear and determine a petition:
a) Challenging the validity of a person as a member of
the national Assembly
b) To determine whether a seat in the National
Assembly has become vacant.
d) Admiralty jurisdiction
Section 4(1) of the Judicature Act constitutes the High
Court an Admiralty court, with jurisdiction to hear and
determine civil disputes arising on the high seas,
within territorial waters and inland navigable lakes and
rivers.
The High Court has jurisdiction to apply international
law in the determination of such disputes.
e) Supervisory jurisdiction
Under section 65 (2) of the Constitution, the
High Court has jurisdiction to supervise the
administration of justice in subordinate courts
and tribunals.
1. Prohibitory order:
This is an order of the High Court
restraining a court or tribunal from
proceeding with a matter before it. This
order may be granted if the court or
tribunal is:
a) Improperly constituted
b) Disregarding relevant matters
c) Exceeding its jurisdiction
d) This order prevents a court or
tribunal from exceeding its jurisdiction
or ignoring the
2. Certiorari: This is a High Court order to a
subordinate court tribunal demanding the production
of certified copies of the proceedings and decisions for
purposes of quashing the decision. The order may be
granted if a decision is arrived at in total disregard of
the rules of natural justice or in excess of jurisdiction
of the tribunal e.t.c.
3. Mandamus: This is a High Court order to a tribunal,
public of official administrative body or local authority
demanding the performance of public duty imposed
upon it by statutes.
The order compels performance by such bodies where
it is unlawfully refused.
4. Habeas corpus:
It literally means produce body. This is an order of
the High Court to a detaining authority or body
demanding the production of the detainee before
the court to show cause why the detainee should
not be released forthwith. This order
questions the legality of the detention. Its
functions to secure the release of detainees in
unlawful custody. The order will be granted when a
persons right or personal liberty
is violated.
PUISNE JUDGES SIT ALONE EXCEPT WHEN
Entertaining a criminal appeal when 2 judges sit if
the chief justice so orders
Entertaining a Constitutional reference i.e.
interpreting the Constitution when uneven
number of judges not less than three sits.
Establishment: It is established by
section 7 (1) of the Magistrates Court
Act which provide
inter alia there is hereby established for
each District Magistrate court which
shall be a court
subordinate to the High Court.
Composition: The court is duly
constituted when presided over or held
by the District Magistrate
1 st, 2nd and 3rd class duly appointed
JURISDICTION
Under section 7 (3) the court has jurisdiction
throughout the District for which it is established. It
entertains both civil and criminal cases. It exercises
original and limited appellate jurisdiction.
Civil jurisdiction
Its jurisdiction is subject to fiancial or
pecuniary restrictions as follows:
District magistrate 1 st class Kshs 75,000.00
District magistrate 2nd class Kshs 75,000.00
The court has a limited jurisdiction to hear and
determine civil cases based on African customary
law.
Criminal jurisdiction
It exercise original jurisdiction in criminal cases
and the maximum sentence it may impose
is restricted by law as follows:
COURT MAXIMUM FINE IMPRISONMENT TERM
STROKES
District Magistrate 1 st class 20,000 7 years 24
District Magistrate 2nd class 10,000 2 Years 12
COURTS MARTIAL
DISADVANTAGES
1. Legal representation: May be limited or non- existent
2. Tribunals generally exercise unregulated discretion
3. Decisions of certain tribunals may not be appealed
EXAMPLES OF TRIBUNALS
1. Industrial court
2. Rent tribunal
3. Business premises tribunal
4. Insurance appeals tribunal (Insurance
Act2)
5. Land Tribunals (Sec. 9B of the
Magistrates Court Act)
6. Capital Markets Tribunal (Capital
Markets Act3)
INDUSTRIAL COURT
Establishment: It is established by section 14 (1) of
the Trade Disputes Act.
Composition: The court consists of a judge appointed
by the President. He sits with 2 other
persons selected by him from a panel of 4 persons
appointed by the Minister for Labour in
consultation with the Central Organization of Trade
Unions (COTU) and Federation of Kenya
Employers. Currently there are 2 industrial court
judges.
Jurisdiction: It exercises limited original jurisdiction in
relation to industrial disputes e.g. between
employees and employers or between employers and
Disputes may be referred to the court by the
minister for labour or a registered trade union.
Decisions of the court are known as Awards and are
fial. Under section 17 (1) of the Trade
Disputes Act, an award cannot be appealed against,
stayed, restrained or be reviewed.
An award must be published in the Kenya Gazette
whereupon it is effective. The court maintains
a register of all collective agreements registered by
it.
The essence of the industrial court is to promote
industrial harmony.
RENT TRIBUNAL
Establishment: It is established by Section 4 (1) of
the Rent Restriction Act4.
Composition: It consists of the chairman and other
persons appointed by the Minister in charge of
Housing. To qualify for appointment as chairman, one
must be an advocate of not less than 5 years
standing.
One of the other persons appointed by the Minister
must be the deputy chairman.
Jurisdiction: It exercises original jurisdiction in civil
cases between landlords and tenants of residential
premises whose monthly rent does not exceed Kshs
2,500.00. Decisions of the
POWERS AND FUNCTIONS OF THE RENT TRIBUNAL