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UPDATE: Researching Kenyan Law

 

By Tom Ojienda and Leonard Obura Aloo
(Previously updated on March 2008 and July 2011)

September 2011 Update by
Tom Ojienda and Mathews Okoth

 

Professor Tom Ojienda holds a Doctorate degree (LLD) from the University of South Africa.  In addition, he holds a Masters of Law degree (LLM) from King’s College London and a Bachelor of Laws degree from the University of Nairobi.  Further, he holds a postgraduate diploma in Law from Kenya School of Law and a Diplome de langue from Alliance Francais de Paris.  He has taught Property Law, Proprietary Rights and Transactions, Professional Ethics, Gender and The Law of the Sea at Moi University for the past 9 years and currently serves as an Associate Professor and the head of the Department of Clinics and Externships. He has published and edited several books including “Conveyancing:Principles and Practice” [2009, Revised 2010] “ Anti-corruption and good Governance” [2007], “Conveyancing: Theory and Practice” [2002],The Legal Profession and Constitutional change in Kenya [2002), “A General Introduction to the New Law of the sea,” [2002], “Constitution making and Democracy in Kenya” [2003] He has published several papers in several referred journals including articles in the areas of Regional Integration, Environmental Law, Property Law, Legal Aid, Family Law, and Legal training. An Advocate of over 14 years experience, Professor Ojienda is a Commissioner in the Truth Justice and Reconciliation Commission [TJRC] and   has served as the Chairman of the Law Society of Kenya and the President of East Africa Law Society and the Vice President of the Pan African Lawyers Union. He is also a member of the Council of the International Bar Association [IBA] and the Council of Legal Education [CLE]. In addition, he Chairs the Land Acquisition and Compensation Tribunal and consulted for the Njonjo and the Ndungu Land Commissions and the Task Force on HIV/AIDS. He was also part of the Land policy formulation process which culminated to the National Land Plicy [Sessional Paper No. 3 of 2009].  Professor Ojienda has presided as one of the Judges in the Africa Human Rights Moot Court in United States of America [USA], Pretoria, Addis-Ababa, Mozambique, Dar-Es-Salaam, South Africa, Ghana, Ivory Coast, Egypt and Zimbabwe. Further, he is a Human Rights trainer for the Kenya National Commission on Human Rights. He has presented several papers in many National and international conferences.

 

Leonard Obura Aloo LL.B. (Nairobi), LL.M. (Commercial Law, Cape Town), LL.M. (IT and Telecommunications Law, Strathclyde, Glasgow UK), Advocate of the High Court of Kenya.  He is an advocate practising in Nairobi, Kenya with the firm of Mwaura and Wachira Advocates and law Lecturer at Kenyatta University, Nairobi, Kenya. Previously, he worked as the head of Commercial Legal Services for Telkom Kenya Limited, the local fixed-line telecommunications provider.  His research interests are in the area of international trade law, regulatory law, alternative dispute resolution, judicial performance evaluation criteria, information technology and telecommunications law. The assistance of Catherine Karanja LL.B (Nairobi) of Mwaura & Wachira Advocates is gratefully acknowledged.

 

Mathews Okoth holds a Bachelor of Laws degree (LL.B Hons) from Moi University, Kenya and Post Graduate Diploma in Law from the Kenya School of Law. He is an Advocate of the High Court of Kenya and a diligent Researcher.  His main areas of practice include commercial law, constitutional law, public administrative law and policy, energy law, land and environmental law, defamation law, labour law, competition law, insolvency law, the law of restitution, civil society law, gender and the law, company law as well as legislative & regulatory review. He currently practices with the firm of Mohammed Muigai Advocates.

 

Published September 2011
See the Archive Version!

 

Table of Contents

Introduction

Historical background

The Kenyan Legal System

The Constitution

The Government

The Executive

The Legislature

The Judiciary

The Structure and Jurisdiction of the Courts

The Supreme Court

The Court of Appeal

The High Court

Subordinate Courts

Constitutional Commissions and Independent Offices

Sources of Kenyan Law

The Constitution

Acts of Parliament

Specific Acts of Parliament of the United Kingdom

English Statutes of General application in Force in England on 12 August 1897

The Substance of Common Law and Doctrines of Equity

African Customary Law

Islamic Law

International Instruments

Law Reporting

Kenyan Laws

Published decisions of the Courts in Print Form

Online Legal Information

Secondary Legal Information

Journals

The Legal Profession

 

Introduction

Kenya is a country on the coast of East Africa. Before 1895, when Kenya was declared a British Protectorate, the country had no structured legal system to speak of. The territory had been administered via the Imperial British East Africa Company, which ‘had to carry out all the obligations undertaken by the British Government under any treaty or agreement made with another state...’

 

In 1896, the territory became known as the East African Protectorate.  It was renamed Kenya Colony and Protectorate in 1920 and it remained so until 1963, when Kenya became an independent state. As a result of British administration for over six decades, the Kenyan legal system borrows heavily from the English legal system.

 

Historical Background

With the settlement of the British in the East African Protectorate, there arose a need for a legislative and administrative system to govern the inhabitants. It should be noted that British settlement was in two instances, direct and indirect.  Direct in the sense that the settlers came into the area straight from Britain and indirect in that there were those settlers who came from India, which had already been a British colony. Thus there existed three sets of people, the British, the Indians who were considered British citizens and the natives.

 

For ease of administration, the British settlers imported laws and their system of governance from Britain, and British laws which had been codified in India, to apply to the East African Protectorate. These laws at the onset, were mainly for the benefit of the settlers, and were applied without regard to the already existing African/native society.

 

The natives were considered to be too primitive to understand the intricacies of the law, and were thus left to practice African Customary law. The Hindus who had emigrated from India were also allowed to practice Hindu Customary law in the area of personal law, while the Muslims and Arabs, who were centralized at the coast, practiced Islamic Law.

 

Thus there now existed several parallel systems of law.  Though the British tried to phase some out by enacting laws to govern the whole country, the effect of the multiplicity can still be felt and seen in the current Kenyan legal system.

 

The Kenyan Legal System

The Constitution

The Kenyan Constitution [2010] is the supreme law of the land and binds all persons and all state organs, and any other law that is inconsistent with the Constitution is void to the extent of the inconsistency.

 

The independence Constitution was enacted on 12 December 1963. The 1963 constitution was negotiated between the Kenyan political parties and the British colonial government.  Following independence, there were several amendments to the independence Constitution. Attempts to comprehensively review the constitution began in the year 2000.  Following a referendum in August 2010, a new constitution was adopted. The new constitution was promulgated into law on 27 August 2010.

 

The new Constitution will come into full effect after the next general election scheduled for August 2012.  In the intervening period aspects of some provisions of the old constitution are still applicable.

 

The Constitution of Kenya 2010 contains the following parts:

Chapter I – Sovereignty of the People and Supremacy of the Constitution

Chapter II – The Republic

Chapter III - Citizenship

Chapter IV – The Bill of Rights

Chapter V – Land and Environment

Chapter VI – Leadership and Integrity

Chapter VII – Representation of the People

Chapter VIII – The Legislature

Chapter IX – The Executive

Chapter X – The Judiciary

Chapter XI – Devolved Government

Chapter XII- Public Finance

Chapter XIII- The Public Service

Chapter XIV- National Security

Chapter XV- Commissions and Independent Offices

Chapter XVI- Amendment of the Constitution

Chapter XVII- General Provisions

Chapter XVIII- Transitional and Consequential Provisions

 

The Government

The powers of the Government under the Constitution of Kenya 2010 are divided into 3 functions: executive function at national and county levels, legislative function at national and county levels and the judicial function.

The Executive

The Executive is the arm of government that implements government laws and policies, [[1]] a role neither performed by the Judiciary, nor the Legislature. Under the constitutional principle of separation of powers, each organ of government has a discrete and defined area of power [[2]] and the executive has its share of power. 

 

Prior to the adoption of the new Constitution in 2010, the Executive consisted of the President, the Vice-President, Ministers and the Assistant Ministers, who were all members of the National assembly (Parliament). Kenya had a Parliamentary president, where the president was both the Head of State and Government, and also a member of parliament. The Cabinet consisted of the President, Vice-President and Ministers. The Ministers were appointed by the President.

 

Following a disputed general election in December 2007, presidential power was divided between the President and a Prime Minister whose duties are to co-ordinate the various ministries. The current Executive is a creature of chapter II of the Old Constitution (sections 4-29 both inclusive). It comprises the President, the Prime Minister, the Vice President, the Deputy Prime Ministers, Ministers, Assistant Ministers, the Attorney General and Permanent Secretaries. The President is the Head and Commander-in-Chief of the armed forces (section 4). He is both a Member of Parliament and the Head of Executive (section 23). For a person to be validly elected President, he must garner a simple majority of all the valid votes cast, and at least 25% of all the valid votes cast in at least five of the eight provinces (section 5(2) (f)). Questions as to the validity of election of the President are heard by the High Court through Petitions lodged by either the Attorney General or any person entitled to vote at the disputed election (section 44).

The Prime Minister is a Member of Parliament who is the parliamentary leader of a political party or coalition with the largest number of elected Members of Parliament.[[3]] Each of the two Deputy Prime Ministers are persons nominated by their respective member of the current coalition government.[[4]]  The Prime Minister co-ordinates and supervises the execution of the functions and affairs of Government, and he is assisted in that mandate by Deputy Prime Ministers.[[5]] The Prime Minister and Deputy Prime Ministers can only be removed if the National Assembly passes a motion of no confidence with a majority vote.[[6]] The President appoints the Vice President as his principal assistant, Ministers and Assistant Ministers from among Members of Parliament (sections 15, 16 & 19).The removal of any Minister of the coalition is subject to consultation and concurrence in writing by the President and the Prime Minister.[[7]] The President appoints Permanent Secretaries and the Attorney General from among non-Members of Parliament. Government ministries are controlled by the Minister and supervised by the Permanent Secretary (section 22(3)). This arrangement continues to be in force until after the next general election when the 2010 Constitution will be fully implemented.

 

Under the 2010 Constitution which will be fully implemented after the next general election, at the national level, the Executive consists of the President, the Deputy-President, the Attorney-General and the Cabinet Secretaries.    Cabinet Secretaries are not members of the National Assembly (Parliament). The executive implements all the laws made by parliament. The Executive authority is vested in the President with the assistance of the Deputy President and Cabinet Secretaries. Upon full implementation of the 2010 Constitution, Kenya will have a republican system, where the president is both the Head of State and Government but is not a member of parliament.   At the same time, the whole government can, by law, be dismissed from office by an adverse vote in parliament. The Cabinet consists of the President, Deputy-President, the Attorney-General and the Cabinet Secretaries. Its function is to aid and advice the President. The Attorney General and Cabinet Secretaries are nominated by the President and approved by the national assembly.   Cabinet secretaries are charged with responsibility over a department/ministry, over which they are to exercise general direction and control.   The President holds office for a maximum of two five-year terms.

 

Under the Constitution of Kenya 2010, there will be established 47 counties in Kenya.  Each county will have its own system of elected government.  The county governments are smaller versions of the national government.  Each county has an elected Governor.  The Governor is directly elected by the voters in the county and appoints an executive committee from amongst people who are not members of the county assembly.  The county governor can serve only two five-year terms.  The counties have responsibility, including the power to make laws, over matters specified in the constitution.  The areas of responsibility of the counties include- agriculture, county health, control of air and noise pollution, cultural and entertainment activities, animal control, education at pre-primary level, fire fighting and control of drugs.

 

The Legislature

Under the previous constitution, Parliament had only one chamber.  Once the 2010 Constitution is fully implemented (after the next general election scheduled for 2012), Parliament will have two chambers.

 

Under the Constitution of Kenya 2010, the main function of the legislature is to protect the Constitution, promote democratic governance and make laws. The legislature (Parliament) is divided into two chambers- the National Assembly and the Senate.

 

The National Assembly consists of 290 members elected by registered voters in constituencies, 47 women each elected by registered voters in counties each county represented by one woman; 12 members nominated by parliamentary political parties according to their proportion in the National Assembly- the 12 represent special interests including the youth, persons with disability and workers. The Speaker presides over the meetings of the National Assembly and is an ex-officio member.

 

The National Assembly enacts legislation that may cover both National and County issues.

 

The National Assembly also plays an important, but not exclusive, role in the financial control of Government expenditure. The National Assembly determines the allocation of revenue between the national and county governments.  The National Assembly’s control over revenue and expenditure is secured by the establishment of the Consolidated Fund, into which all revenue of the Government must be paid. However, Parliament may authorize the establishment of other funds for specified purposes, and may also provide that some of the revenue need not be paid into any established fund but may be retained by the authority which received it, for offsetting the expenses of that authority.

 

The National Assembly also acts as a control and critic of the Government.  It reviews the conduct of the President, the Deputy President and other state officers and initiates the process of their removal from office.

 

The Senate comprises 47 members elected by registered voters of the counties, each county represented by one member, 16 women members nominated by political parties according to their proportion of elected senators; two members one man and one woman to represent the youth; and two members, one man and one woman to represent persons with disabilities.  The special seats are based on political parties according to their proportion of elected Senators.  The Speaker is an ex-officio member of the senate.

 

The Senate represents the counties and serves to protect the interests of the counties and their governments.  The Senate considers debates and approves Bills that concern counties.  The Senate determines the allocation of revenue among counties and exercises oversight over national revenue allocated to the county governments.  The Senate also participates in oversight of state officers by considering and determining resolutions to remove the President and Deputy-president from office.

 

Most of the laws in Kenya emanate from an act of Parliament. These are introduced into Parliament as Bills. The Bill may be either one concerning the county government (which affects the functions of the county government, relates to election of members of a county assembly or a county executive or affects county finances) or one not concerning county government.  A Bill that does not concern the county government is considered only in the National Assembly.  A Bill concerning county government is considered in both the National Assembly and the Senate.

 

The Bill has to be published, in the Kenya Gazette, fourteen days before its introduction.  It then has its First Reading, which is a formal reading of the title of the Bill. This is followed by a Second Reading, which is an occasion for debate on the general principles of the Bill, after which it is referred to a Committee of the National Assembly for debate and discussion on the detailed provisions. If the Committee reports favorably to the Assembly, then the Bill has its Third and final reading, where the debate, if any, is restricted to a general statement or reiteration of objections. If approved, the Bill is ready for the Presidential assent, after which it is published in the Kenya Gazette and becomes an Act of Parliament. The President is required to assent to the Bill or refer it back to Parliament for reconsideration noting his reservations.  Parliament may then amend the Bill in light of the reservations or with a 2/3 majority pass the Bill a second time without amendment.  The President must then assent to the Bill within 7 days.  The Act will come into force 14 days after it is published in the Gazette.

 

The official languages of both houses of Parliament are Kiswahili, English and Kenyan sign language.

The Judiciary

The judiciary consists of the Courts and all officers of the Courts including, the Chief Justice, the Attorney General, Judges and Magistrates. The judiciary determines disputes which arise between individuals, and those arising between individuals and the State.

One of the issues for judicial reforms intended to be resolved by the New Constitution was the need to have a more independent, transparent and accountable judiciary.[[8]] The New Constitution attempts to address this concern by creating a more inclusive and accountable Judicial Service Commission as an independent mechanism for appointment of judges. Under art 171 of the New Constitution, other than Chief Justice, the Attorney General and representatives of each of the superior courts, the Judicial Service Commission is equally representative of magistrates, statutory body that regulates advocates, Public Service Commission and lay persons. Whereas the President appoints the representatives of the lay persons, such appointments must be approved by the National Assembly.[[9]] Judges enjoy security of tenure,[[10]] have their salaries charged on the Consolidated Fund,[[11]] cannot have their salaries and benefits varied to their disadvantage[[12]] and are immuned from any action or suit in respect of anything done in good faith in exercise of their judicial function.[[13]]  Critics however still argue that the safeguards given to judges to ensure independence of the judiciary should extend to the magistrates.[[14]

 

Further, the New Constitution establishes the Judiciary Fund administered by the Chief Registrar of the Judiciary. [[15]] The Judiciary Fund is charged on the Consolidated Fund [[16]] and is used for administrative expenses of the Judiciary and such purposes as are necessary to discharge the functions of the Judiciary. [[17]] The establishment of the Judiciary Fund charged on the Consolidated Fund institutionalises judicial independence. [[18]]

 

In the performance of their mandate, judges and other judicial officers are guided by specific principles which include non-discriminatory delivery of justice; expeditious delivery of justice; promotion of alternative forms of dispute resolution; de-emphasis of procedural technicalities; as well as protection and promotion of the purpose and principles of the New Constitution. [[19]] In the process, a lot of emphasis is laid in promoting formal legality than concentrating on technicalities. Appointment of judges is on the strength of their varying degrees of experience either as superior court judges, distinguished academic or legal practitioners or on the basis of their experience in other relevant field.[[20]] This institutionalises integrity in not only the judiciary, but also the person of the appointed judicial officers. 

 

The New Constitution establishes the Judicial Service Commission [[21]] as the body mandated to petition the President to remove a judge from office. The petition may be initiated by the Commission suo moto or by any person aggrieved by the conduct of a judge. This gives every consumer of justice an opportunity to petition for a judge to be removed in the event that he/she is reasonably aggrieved by the conduct of the judge. Within fourteen days from the date of receipt of the petition, the President is obliged to suspend the judge against whom the petition is made and appoint a tribunal to investigate the conduct of the judge. The tribunal is then required to expeditiously inquire into the petition and make binding recommendations to the President. During suspension, the remunerations and benefits paid to the judge are adjusted to one-half until the judge is removed from, or reinstated in office. A judge aggrieved by the recommendations of the tribunal may appeal to the Supreme Court within ten days from the date the tribunal makes its recommendations.[[22]] The disciplinary mechanism instils a sense of accountability of judicial officers in exercising their mandate. Certain critics [[23]] have argued that not all breaches of regulations by judges should warrant removal from office; that there should be put in place some form of internal disciplinary mechanisms by the head of the Judiciary for ‘petty’ breaches of regulations. With respect, such an approach may turn the heads of Judiciary into sources of coercion and intimidation of judicial officers.  

 

The inclusion of Kadhi’s Courts in the New Constitution to adjudicate matters of Islamic personal laws between persons who profess Islamic faith has a historical bearing. [[24]] Under the Agreement, the Kenyan Government undertook that:

‘1 The free exercise of any creed or religion will at all times be safeguarded and, in particular, His Highness present subjects who are of the Muslim faith and their descendants will all the times be ensured of complete freedom of worship and the preservation of their own religious buildings and institutions.

2. The jurisdiction of the Chief Kadhi and all the other Kadhis will at all times be preserved  and will extend to the determination of questions of Muslim law relating to personal status (for example, marriage, divorce and inheritance) in proceedings in which all parties profess the Muslim religion…’ [[25]

 

The doctrine of pacta sunt servanda obliges Kenyan Government to observe its Agreement of October 1963 with the Colonial Government and the Sultan of Zanzibar about the Coastal Strip. Pacta sunt servanda as a doctrine means that states are obliged to fulfil in good faith their commitments under international law.[[26]] Secondly, matters of Christian personal laws are sufficiently addressed in the Kenyan Statues, including the African Christian Marriage and Divorce Act[[27]] as well as Matrimonial Causes Act[[28]] which bear their origin from the English Common Law.[[29]] Establishment of Kadhi’s courts beyond the former ten mile coastal strip is alive to human dynamism and other rights adjunct to exercise of freedom of conscience such as freedom of movement. Muslims do not therefore have to go to the former ten miles coastal strips to have their grievances addressed by the Kadhi’s courts.

 

The Structure and Jurisdiction of the Courts

The Supreme Court

It is the highest Court in Kenya.  The Supreme Court is a superior court of record made up of seven judges, including the Chief Justice and the Deputy Chief Justice.  It has exclusive original jurisdiction to hear and determine disputes arising from presidential elections.  It has appellate jurisdiction, from the Court of Appeal, in cases of the interpretation or application of the Constitution.  The Supreme Court can hear appeals in any other case in which the Supreme Court or the Court of Appeal Certifies that a matter of general public importance is involved. The Court may also give advisory opinions in respect of matters concerning county government at the request of the national government, a state organ or county government. It is presided over by the Judges of Appeal, who are appointed by the President. The decisions of the Supreme Court are binding on all other courts, including the Court of Appeal and the High Court.

The Court of Appeal

The Court of Appeal is a superior court of record made up a minimum of twelve judges [[30]] who, from among themselves, elect their administrative head, to wit, the President of the Court of Appeal. [[31]] The Court of Appeal hears appeals from the High Court as well as from courts and tribunals prescribed by national statute. [[32]] It has only appellate jurisdiction, in both civil and criminal cases. It is presided over by the Judges of Appeal, who are appointed by the President. The decisions of the Court of Appeal are binding on all other subordinate courts, including the High Court.

The High Court

The High Court is a superior court of record made up of such number of judges as prescribed by an Act of Parliament.[[33]]  The judges elect their administrative head- the Principal Judge of the High Court- from among themselves.[[34]] The High Court has unlimited original and appellate jurisdiction in criminal and civil matters; the jurisdiction to determine whether fundamental rights and freedom of the individual has been denied, violated, infringed or threatened; the jurisdiction to determine appeals from all tribunals except tribunals set up for purposes of impeachment of the President; the jurisdiction to interpret the Proposed Constitution; as well as such jurisdiction as conferred by statute.[[35]] The foregoing jurisdiction of the High Court excludes matters falling within the jurisdiction of the Employment and Labour Relations Courts as well as Land and Environmental Courts.

 

Other Courts with Status of the High Court

  • Employment and Labour Courts with the status of the High Court has been established to hear and determine employment and labour issues. It is presided over by judges appointed by the president and eight other members appointed by the Minister of Labour. Its function is to settle trade disputes generally and trade disputes in essential services. It may also determine disputes arising out of employment contracts, and claims arising out of work related injuries and occupational diseases.
  • Land and Environment Court:- Although these are yet to be established, parliament may also establish a court with the status of the High Court to hear and determine disputes relating to the environment and use and occupation of and title to land.
  • Establishment of Employment and Labour Courts as well as Environmental and Land disputes court having equal status as the High Court cures the jurisdictional conflict issues that have bedeviled the judiciary, for instance between the Industrial Court[[36]] and the High Court.[[37]]

Subordinate Courts

The jurisdiction of these courts is determined on a territorial and pecuniary basis. They are presided over by magistrates. The magistrate’s courts are in order of hierarchy, with the Chief Magistrate’s court being the highest, followed by the Senior Principal Magistrate’s Court, Principal Magistrate’s Courts, Senior Resident Magistrate’s Courts, Resident Magistrate’s Courts and the District Magistrate’s courts. Subordinate courts include the Magistrate’s courts, the Kadhi’s courts, the Courts Martial, and tribunals established by the dint of a statute. The Employment and Labour Relations Courts as well as Land and Environmental Courts which are creatures of statute are excluded from the category of subordinate courts.[[38]] The jurisdiction and functions of the subordinate courts are statute given.[[39]]

 

  • Kadhi’s Courts - Established under the Kadhi’s Courts Act, (Chapter 11 Laws of Kenya), it is presided over by the Chief Kadhi or a Kadhi. It has jurisdiction to determine questions of Islamic law relating to personal status, marriage, divorce and inheritance in proceedings in which all the parties profess the Muslim religion and submit to the jurisdiction of the court.[[40]] Appeals from the Kadhi’s courts lie to the High Court, which sits with the Chief Kadhi or two other Kadhis as assessors.
  • The Children’s Court - Established in 2001, it is a special court which deals with cases concerning children. It hears cases concerning parental responsibility, children institutions, custody and maintenance, orders for the protection of children, children in need of care and protection. It also hears cases where a person has been charged with an offence under the Children’s Act. It however does not hear cases where the child is charged with murder, or jointly with adults.
  • Tribunals - These are quasi-judicial bodies established piecemeal to deal with specific matters. The more prominent tribunals are:
  • Rent Tribunals - These deal with matters concerning landlord and tenant relations.
  • The Public Procurement Tribunal- This deals with matters concerning procurement by government and government owned entities.

 

Constitutional Commissions and Independent Offices

The New Constitution introduces ten Constitutional Commissions and two Independent Offices. [[41]] This is as against a total of seven commissions under the Old Constitution and the offices of the Controller and Auditor General. Not provided for under the Old Constitution but in existence currently are the Kenya National Human Rights Commission (KNHRC) and the Teachers Service Commission (TSC). Entirely new Commissions are the National Land Commission (NLC), the Commission on Revenue Allocation (CRA), the Salaries and Remuneration Commission (SRC) and the National Police Service Commission (NPSC). For clarity, the Constitutional Commissions and Independent Offices established under the New Constitution include:

(i)   Commission for Implementation of the Constitution;

(ii) Judicial Service Commission;

(iii)                 Public Service Commission;

(iv)                  Commission on Revenue Allocation;

(v)  Salaries & Remuneration Commission;

(vi)                  Kenya National Human Rights & Equality Commission;

(vii) National Land Commission;

(viii)  Independent Electoral & Boundaries Commission;

(ix) Controller of Budget;

(x) Auditor General;

(xi) Parliamentary Service Commission;

(xii) National Police Service Commission;

(xiii) Teachers Service Commission; and

(xiv) Ethics & Anti-Corruption Commission

Sources of Kenyan Law

The primary sources are enumerated in Section 3 of the Judicature Act (Chapter 8 Laws of Kenya) (as read with Article 2 of the Constitution), and they include:

The Constitution

It is the supreme law of the land, taking precedence over all other forms of law, written and unwritten. If any other law is inconsistent with it, the constitution prevails, and the other law, to the extent of its inconsistency, is void. Many Acts of Parliament are made pursuant to particular provisions in the Constitution.

Acts of Parliament

These are passed by parliament and also include subsidiary legislation, that is, laws made under the authority of an Act of Parliament.

Specific Acts of Parliament of the United Kingdom

These are cited in the schedule to the Judicature Act and include:

  • The Admiralty Offences (Colonial) Act, 1849.
  • The Evidence Act, 1851, sections 7 and 11.
  • The Foreign Tribunals Evidence Act, 1856.
  • The Evidence by Commission Act, 1859.
  • The British Law Ascertainment Act, 1859.
  • The Admiralty Offences (Colonial Act), 1860.
  • The Foreign Law Ascertainment Act, 1861.
  • The Conveyancing (Scotland) Act, 1874 Section 51.
  • The Evidence by Commission Act, 1885.

Certain Acts of Parliament of India

The Transfer of Property Act, 1882 of India contains the procedural law applicable where the Registration of Titles Act, the Land Titles Act and the Government Lands Act are applied.

English Statutes of General application in Force in England on 12th August 1897

The English statutes of general application passed before 12 August 1897(the reception date), are law in Kenya, unless a Kenyan statute, or a latter English statute made applicable in Kenya, has repealed any such statute. A statute of general application, if repealed by a later English statute would still be law in Kenya. Statutes of general application include public Acts of Parliament, that is, those which apply to the inhabitants at large and which are not limited in their application to prescribed persons or areas. The statutes are also applicable in Kenya in the form that they had at the reception date. Any subsequent amendments of such statutes in England have no effect in Kenya. The only way to alter such statutes is for the Kenya Parliament to amend these by independent legislation.

The Substance of Common Law and Doctrines of Equity

These are only applicable to the Kenyan inhabitants in so far as the circumstances of Kenya permit, subject to such qualifications as those circumstances may render necessary.

African Customary Law

This is applicable only on civil cases where one or more of the parties is subject to or affected by it, in so far as it is applicable and is not repugnant to justice and morality or inconsistent with any other law. African Customary law differs from tribe to tribe.

Islamic Law

This is a very limited source of law in Kenya. It is applied in Kadhi’s Courts when all the parties profess the Islamic religion, but only as to questions of Islamic law relating to personal status, marriage, divorce and inheritance issues and only where both parties submit to the Kadhi’s Courts jurisdiction...

International Instruments

The Constitution provides that international law is a source of Kenyan law. The general rules of international law form part of the law of Kenya.  Any treaty or convention ratified by Kenya forms part of the law of Kenya.

Law Reporting

Kenyan Laws

In book form, the Law of Kenya comprises over 500 individual Acts of Parliament and a host of rules and regulations made under the authority of Acts of Parliament, usually referred to as subsidiary legislation. In booklet form, the Law of Kenya runs into over 20,000 pages and is published in over 500 booklets clustered in 15 hard copy binders (the Volumes of the Law of Kenya). These can be purchased from the Government Bookshop, but the statutes are not amended, the amendments can be bought or done at any of the High Court libraries in the Country.

Published decisions of the Courts in Print Form

The earliest Law reports in Kenya were published under the citation E.A.L.R. (East African Law Reports), for the period between 1897 and 1905. There are seven volumes and the reports cover decisions from all courts of different jurisdictions in the then East Africa Protectorate.  Between 1922 and 1956, twenty-one volumes of the Kenya Law Reports (K.L.R) were published. These include decisions of the High Court only. The period between 1934 and1956, the Court of Appeal for Eastern Africa Law Reports (E.A.L.R.) were published. They are twenty- three volumes in total and they report the decisions of the then Court of Appeal of Eastern Africa and of the Privy Council. The East Africa Law Reports (E.A) were introduced in 1957, and were published in nineteen volumes until 1975. They covered decisions of the Court of Appeal of East Africa and the superior courts of the constituent territories, that is, Kenya, Uganda, Tanzania, Aden, Seychelles and Somali Land. The reports went out of publication following the collapse of the east African Community.

 

There were sporadic and transitory attempts at law reporting. Six volumes of the New Kenya Law Reports were published by the East African Publishing House limited, covering and including the years of 1976 to 1980. These reports included the decisions of the High Court and the Court of Appeal of Kenya. The Kenya Appeal reports were later published by Butterworth’s, in two volumes, for the period between 1982 -1992. They cover the decisions of the Court of Appeal of Kenya selected over that period.

 

The Kenya Law Reports (KLR) were re-launched in 2002, with the first volume being the [1981] KLR, under the auspices of the National Council for Law reporting. The reports cover the decisions of both the High Court and the Court of Appeal in Kenya. The Council has published succeeding volumes from each year since 1981. The East Africa Law reports and the East Africa Court of Appeal reports are published under the joint venture partnership between LawAfrica and LexisNexis Butterworth’s.

Online Legal Information

The Kenya Law Reports eKLR site provides an up to date edition of the Laws of Kenya in a searchable database. It also includes the Kenya Gazette from 2003. The site also has a digital format of the Kenya Law Reports, where one can search for cases from 1971, but printing is not available once a decision has been published in the Kenya Law Reports. The site also has bench updates, which are recent decisions of the High Court and the Court of Appeal that are unreported.

 

LawAfrica has the East Africa Law Reports, LawAfrica Law Reports, East Africa Court of Appeal Reports and the Laws of Kenya. It also has ‘Hot from the bench’, which is an online subscription service that contains recent cases by various courts in the Eastern Africa region.

Kenya Government is the official Kenya Government portal on the web and provides links to sites of various Government Ministries and other state agencies.

Secondary Legal Information

There are a number of legal textbooks written by members of the Kenyan academia, the bench and the bar over the years.  A few important ones include:

 

  • Ahmednasir, M. Abdullahi.  Burial Disputes in Modern Kenya: African Customary Law in a Judicial Conundrum. Fotoform Ltd. Nairobi, 1999.
  • Cotran, Eugene. Restatement of African Law: Kenya. Sweet & Maxwell. London 1968.
  • Ghai, Y.P and McAuslan, J.P.W.B. Public Law and Political Change in Kenya. Oxford University Press, Nairobi, 1970.
  • Harvery, William Burnett. Introduction to the Legal System In East Africa. East African Literature Bureau. Nairobi, 1975.
  • Hodgin, R.W. Law of Contract in East Africa. Kenya Literature Bureau. Nairobi, 1975.
  • Kuloba, Richard. Judicial Hints on Civil Procedure 2nd ed. Law Africa Publishing Ltd. Nairobi, 2005
  • Makali, David (ed). Media Law and Practice: The Kenyan Jurisprudence. Phoenix Publishers Ltd, Nairobi, 2003.
  • Musyoka, William. Law of Succession. Law Africa Publishing Ltd. Nairobi, 2006
  • Mwangi, Paul. The Black Bar: Corruption and Political intrigue in the Kenyan legal fraternity. Oakland Media. Nairobi, 2001.
  • Odunga, G.V. Digest on Civil Case Law and Practice. Law Africa Publishing Ltd. Nairobi, 2006
  • Ogola, John Joseph. Business Law. Focus Books. Nairobi, 1999.
  • Ogola, John Joseph. Company Law. Focus Books. Nairobi, 1997.
  • Ojienda, Tom. Conveyancing: Principles and Practice. Law Africa Publishing Ltd. Nairobi, 2007.
  • Ojienda, Tom. Anti-Corruption and Good Governance in East Africaa. Law Africs Publishing Ltd, 2007.
  • Ojwang, J.B. Constitutional Development in Kenya: Institutional Adaptation and Social Change. Acts Press. Nairobi, 1990.
  • Okoth-Ogendo, H.W.O. Tenants of the Crown: Evolution of Agrarian Law and Institutions in Kenya. Acts Press, Nairobi, 1991.
  • Onalo, P.L. Land Law and Conveyance in Kenya. Heinemann Kenya Limited. Nairobi, 1986.

Journals

Kenyan legal journals have not been published very consistently.  Some current journals include:

 

  • The Law Society of Kenya Journal (Published by the Law Society of Kenya)
  • The University of Nairobi Law Journal
  • The Moi University Law Journal
  • The Nairobi Law Monthly (A monthly magazine on topical legal and political issues.

The Legal Profession

Kenya established its own institution for the legal education in 1963, shortly before independence – the Kenya School of Law. The school was originally responsible for pre-entry training to the legal profession. In, July 1970, The Faculty of Law, University of Nairobi was established and it became responsible for pre-entry training. A second law Faculty was opened at Moi University in July 1994.  The Kenya School of Law is now concerned with post-graduate training prior to admission to the Roll of Advocates.

 

Lawyers in Kenya are known as Advocates. The legal profession consists not only of Advocates, but also Judges, Resident Magistrates, District magistrates and Law teachers.

 

The rules governing the admission of Advocates of the High Court of Kenya are contained in the Advocates Act (Cap 16) and the Advocates (Admission) Regulations. The position since 1983 is that to be duly qualified, a person requires a University Degree in law that is approved by the Council for Legal Education. Further requirements to be satisfied before a person can be admitted to the Roll of Advocates are:

·       He must serve pupilage for six months with an Advocate who has practiced Law in Kenya for a period of not less than five years, or in the Attorney General’s Chambers. (Pupilage involves instructions in the proper business, practice and employment of an Advocate)

·       He must pass, or be exempted from, the qualifying examinations of the Council of Legal Education for admission to the Roll of Advocates. (The Council is the professional examining body for entry to the profession.)

 

After completion and or approval of the Council of Legal Education, the applicant then petitions the Chief Justice of Kenya for admission as an Advocate of the High Court of Kenya. Once admitted to the Roll of Advocates he becomes an officer of the High Court of Kenya.



[[1]] University of London. Constitutional Fundamentals: Separation of Powers, p. 45. Available at http://www.londoninternational.ac.uk/current_students/programme_resources/laws/law_docs/llb_booklist.pdf , accessed last on August 19, 2010.

[[2]] The principle of separation of powers among the various arms of government may be traced from the  French writer, Charles Louis de Montesqui in his, “The Spirit of the Law” in which he argues that separation of powers ensures that the functions, personnel and powers of the major institutions of the state are not concentrated in one body. It ensures a diffusion rather than a concentration of power within the state, the fundamental purpose being to avoid the abuse of power and thereby to protect the rights and the liberties of the citizens. See 

[[3]] National Accord and Reconciliation Act No. 4 of 2008, s. 3.

[[4]] Ibid.

[[5]] National Accord and Reconciliation Act No. 4 of 2008, s. 4.

[[6]] Agreement on the Principles of Partnership of the Coalition Government, Schedule of the National Accord and Reconciliation Act No. 4 of 2008.

[[7]] Agreement on the Principles of Partnership of the Coalition Government, Schedule of the National Accord and Reconciliation Act No. 4 of 2008.

[[8]] Ochich, G. ‘The Changing Paradigm of Human Rights Litigation in East Africa.’ Reinforcing judicial and legal institutions: Legal institutions. Nairobi: International Commission of Jurists Publication, 2007 (5): 29. According to the author: ‘The Executive-Judiciary partnership during the colonial era sowed the seeds for what has manifested itself in form of a refined apparent friendship that has persisted between the judiciary and executive arms of government. This has been unfortunate, considering that the most serious incidences of human rights abuse are often orchestrated by or with the complicity of the executive.’

[[9]] New Constitution of Kenya, art 171(2).

[[10]] ibid, art 160(2).

[[11]] ibid, art 160(3).

[[12]] ibid, art 160(4).

[[13]] ibid, art 160(5).

[[14]] Laibuta, A. ‘Constitutional and Institutional Reform: What Role in Addressing Impunity.’ Addressing Impunity and Options for Justice in Kenya: Mechanisms, Issues and Debates. Nairobi: The Kenya Section of the International Commission of Jurists Publication, 2009, 229-287 at 247.

[[15]] ibid, art 173(1).

[[16]] ibid, art 173(4).

[[17]] ibid, art 173(2).

[[18]] New Constitution of Kenya, art 173.

[[19]] ibid, art 159(2).

[[20]] ibid, art 166(3).

[[21]] Currently, the Judicial Service Act, 2010, which, inter alia, makes provisions for the structure and appointment of the members of the Judicial Service Commission has been enacted.

[[22]] Constitution of Kenya, art 168.

[[23]] See Gicheru E. Independence of the Judiciary: Accountability and Contempt of Court. Available at http://www.kenyalaw.org  (site accessed July 25, 2011).

[[24]] See the Agreement between the Government of the United Kingdom, His Highness the Sultan of Zanzibar, the Government of Kenya and the Government of Zanzibar. Presented to Parliament by the Secretary of State for the Colonies by Command of Her Majesty on November 11, 1963. (London: University of London).

[[25]] ibid.

[[26]] Lukashuk I.I. ‘The Principle of Pacta Sunt Servanda and the Nature of Obligation under International Law.’ The American Journal of International Law. Washington D.C.: American Society of International Law, 1989 83(3): 513.

[[27]] ibid. Art 164(1) states: ‘There is established the Court of Appeal, which- (a) shall consist of the number of judges, being not fewer than twelve, as may be prescribed by an Act of Parliament…’ (Cap 151) Laws of Kenya.

[[28]] (Cap 152) Laws of Kenya.

[[29]] Ghai Y. P. & McAuslan  J.P.W.B. Public Law and Political Change in Kenya London: Oxford University Press, 1970, 1.

[[30]] ibid, art 164(1) states: ‘There is established the Court of Appeal, which- (a) shall consist of the number of judges, being not fewer than twelve, as may be prescribed by an Act of Parliament…’

[[31]] ibid, art 164(2).

[[32]] ibid, art 164(3).

[[33]] ibid, art 165(1) states: ‘There is established the High Court, which- (a) shall consist of the number of judges prescribed by an Act of Parliament…’

[[34]] ibid, art 165(2).

[[35]] ibid, art 165(3).

[[36]] ibid, art 163(1) states: ‘There is established the Supreme Court, which shall consist of- (a) the Chief Justice, who shall be the president of the court; (b) the Deputy Chief Justice, who shall- (i) deputise for the Chief Justice; and (ii) be the vice-president of the court; and (c) five other judges.’ The Industrial Court is established under section 11(1) of the Labour Institutions Act No. 12 of 2007, which states:

‘There is established an Industrial Court with all the powers and rights set out in this Act or any other law, for the furtherance, securing and maintenance of good industrial or labour relations and employment conditions in Kenya.’

[[37]] See Mecol Limited vs. Attorney General & 7 Others (2006) eKLR; Safaricom Limited vs. Ocean View Beach Hotel Limited & 2 Others (2010) eKLR ; Kenya Airways Limited vs. Kenya Airline Pilots Association, Misc. Application No. 254 of 2001. The Court held: ‘I agree with the applicant’s contention that the Industrial Court is subordinate to the High Court as the Constitution, specifically section 60 and 65(2) when read together with section 123(1) strongly suggests that the High Court is empowered to play a supervisory role over the industrial Court. Further, the Constitution supersedes the Interpretation and General provisions Act and I would therefore go by the Constitution and hold that Industrial Court is inferior to the High Court.’

[[38]] ibid, art 169(1).

[[39]] ibid, art 169(2).

[[40]] ibid, art 170(5).

[[41]] Chapter 15, New Constitution.