UPDATE: Researching Kenyan Law

 

By Tom Ojienda and Leonard Obura Aloo

(Update in Sept. 2011 by Tom Ojienda and Mathews Okoth)

Updated by Tom Ojienda

 

Prof. Tom Ojienda holds a Doctorate degree (LLD) from the U. of South Africa, a Masters of Law degree (LLM) from King’s College London and a Bachelor of Law from U. of Nairobi, and holds a postgraduate diploma in Law from Kenya School of Law and a Diplome de langue from Alliance Francais de Paris. He taught Property Law, Proprietary Rights and Transactions, Professional Ethics, Gender and the Law of the Sea at Moi University for the past 9 years, served as a Commissioner in the Truth Justice and Reconciliation Commission established after the 2007-2008 post-election violence in Kenya, and Chair of the Land Acquisition Compensation Tribunal  in Kenya. He taught and supervised one master of Philosophy student at the school of Environmental Studies, taken part in the Annual African Universities Human Rights Moot Court series organized by the Centre of Human Rights University of Pretoria and has presided over court sessions in several African Universities. He has been involved in the establishment of the Legal Aid Clinic at Moi University and the Juvenile Legal Aid Project of the Rift Valley Law Society.

 

He has published and edited several books including: “Conveyancing: Principles & Practice” [2002, 2009, Rev. 2010], “Anti-corruption & Good Governance” [2007], “The Legal Profession & Constitutional Change in Kenya [2002], “A General Introduction to the New Law of the Sea” [2002], “Constitution Making & Democracy in Kenya” [2003], “The Dawn of a New Era” [2004 editor], “Professional Ethics” [2012, with Katarina Juma],The Enforcement of Professional Ethics in Kenya” [2013, with Prof. Cox], “Constitutionalism & Democratic Governance in Africa” [2013, with Prof. Mbodenyi], “Mastering Legal Research Law Africa [2013]. Prof. Ojienda also published many articles in journals.  

 

Prof. Ojienda is a Senior Counsel and Advocate with over 18 years of experience. He is a Commissioner in the Judicial Service Commission and has served as the Chairman of the Law Society of Kenya, the President of East Africa Law Society, and the Vice President of the Pan African Lawyers Union. Currently, he is a Council member of the Int’l Bar Association, Commonwealth Lawyers Assoc., European Lawyers Assoc., Pan African Lawyers Union (P.A.L.U), the East Africa Law Society, Law Society of Kenya, Member of the Board of Am. Biographical Society, Member of the Council of Legal Ed., Member of the Public Law Institute of Kenya, Kenya Industrial Property Inst., Associate Professor of Public Law at Moi University, and Member of the Judicial Service Commission (JSC). He chairs the Land Acquisition and Compensation Tribunal and consults 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 Policy [Sessional Paper No. 3 of 2009]. Prof. Ojienda has presided as one of the Judges in the Africa Human Rights Moot Court in the US, Pretoria, Addis-Ababa, Mozambique, Dar-Es-Salaam, South Africa, Ghana, Ivory Coast, Egypt and Zimbabwe. He is a human rights trainer for the Kenya National Commission on Human Rights and has presented several papers at many national and int’l 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, and 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, labor 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 February 2016

(Previously updated on March 2008 and Sept. 2011)

See the Archive Version!

 

1. 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 various forms of leadership and administration were organized around age sets and related to the relevant social, economic, cultural and political activities around age sets.[1] For instance, religious leaders and diviners.[2] The formal contact between Europe and Kenya in terms of administration began after the Berlin Conference of 1884. This confirmed the quest for spheres of influence or the “Scramble for Africa”. At first Britain used the IBEA Co., a chartered company, as the main instrument for penetrating East Africa and consolidating British power.

 

In 1896, the territory became known as the East African Protectorate. It was renamed Kenya when it became a British colony following complex social, economic, political, military and juridical adventures and related processes in statecraft. 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.

 

2. 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. The British now had responsibility for administration, for protecting all within the colony. 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. However, this position was reversed to the effect that these laws applied to Africans, who were subjects of the crown; British citizens; other settlers as well as Indians and other immigrants.[3]

 

Thus there 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.

 

3. The Kenyan Legal System

 

3.1. 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 2010 Constitution of Kenya, currently in force, replaced the 1969 Constitution, that itself had replaced the 1963 independence constitution. 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. The current constitution was presented to the Attorney General of Kenya on 7th April 2010, officially published on 6th May 2010 and was subjected to a referendum on 4th August 2010. The new constitution was approved by 67% of Kenyan voters hence its promulgation on 27th August 2010.

The transitional provisions contained in the Sixth Schedule to the Constitution of Kenya, 2010 were intended to assist in the transition into the new order, but were limited in time  and in operation  and were  to remain  in force for the period  provided  in order to achieve the aspirations of Kenyans in moving into the new order. These transitional provisions were as much a part of the Constitution and as much an expression of the sovereign will of the people as the main body of the Constitution.

 

The constitution must be read as an integrated whole, where conflict arises between substantive provision and transitional provisions, then the substantive provisions of the Constitution would prevail. It is important to note that the role of the transitional clauses in the Constitution was to ensure a smooth shift from the old to the new order, while the role of the Constitution 2010 was to address and correct past injustices and ensure that the citizens’ rights are protected in the future. [4] 

 

The Constitution of Kenya 2010 contains the following parts:

 

 

The Doctrine of Separation of Powers:

 

This doctrine is in place to prevent abuse of powers and enhance checks and balances in governance .The Constitution of Kenya 2010 proposes major reforms concerning the realization of efficacy, accountability, integrity in governance and separation of powers. These include:

 

 

 

3.2. 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.

 

3.3. The Executive

The Executive is the arm of government that implements government laws and policies,[7] 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[8] and the executive has its share of power. It oversees, coordinates and administers over the country to ensure all systems run well.

 

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.[9] Each of the two Deputy Prime Ministers are persons nominated by their respective member of the current coalition government.[10]  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.[11] 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.[12] 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.[13] 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 has since ceased to be in force after the 2013 General Election when the 2010 Constitution was fully implemented.

 

Under the 2010 The Executive Kenya 201o derives its constitutional, legislative and administrative architecture from:

 

 

Chapter 9 of the Constitution of Kenya 2010 states the rules regarding principles of the National Executive. Article 129 provides that the Executive derives its power from the people of Kenya and shall be exercised in accordance with the Constitution.  The Constitution of Kenya 201 provides for decentralization of both legislative and executive power by the introduction of county governments. It also phases out other constitutional offices that were introduced by the 1969 Constitution, National Accord and Reconciliation Act (NARA) 2008 and the relevant legislation. The Executive consists of the President, the Deputy-President, the Attorney-General, the Cabinet Secretaries, Director of Public Prosecutions, Principal Secretaries and the Public Service[14]

 

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. Notable changes under this 2010 constitution are that; 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.

 

The Mandate of the Executive within the separation of powers thesis, the role of the Executive is described as execution of the law. However, the exact role of the Executive is laid out in the constitution as: National Security; Public administration; Economic planning; Service delivery; Collection of taxes; Public procurement and disposal and Foreign relations and international cooperation. The Executive acting under parliamentary legislation drafted by the parliamentary branch to guide the many sectors of the economy or Government.

 

Core Concepts in the Executive in Kenya:

 

 

 

 

 

 

 

 

 

 

The Constitution 2010 pegs fundamental restructuring and reform of the executive and administrative bureaucracy on the first election after promulgation. The composition of the executable therefore changed after the general election of March 4th 2013. There are established 47 counties in Kenya.  Each county has 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, firefighting and control of drugs.

 

With the introduction of county governments, the role of national government is meant to be greatly reduced. The devolved government is meant to have great impact on the traditional powers of the President in a number of ways, including reducing the power to determine the distribution of resources.

 

3.4. The Legislature

Under the previous constitution, Parliament had only one chamber.  Parliament now has two chambers[20].

 

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, totaling to 350.

 

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. Public participation in law making, budgetary matters, etc. is mandatory under the Constitution.

 

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, totaling to 68

 

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. Senate power is exercised via research of facts, debating, voting, lobbying, party whipping, consensus building, trade-offs etc.

 

When the Senate is voting on matters that affect counties, other than a Bill, each county delegation shall have one vote to be cast on behalf of the county by the head of the county delegation or another member of the delegation designated by the head of the delegation.[21] It is noteworthy all elected and nominated senate members  who are registered voters in a particular county will constitute a single county delegation for purposes of voting on issues concerning counties.[22]

 

Presidential and parliamentary candidates must satisfy educational, ethical and moral requirements as per Articles 99,137,193 and 200 of the Constitution; and as specified in various statutes[23] Power of recall[24]: the electorate will have power to recall elected MPs and Senators following due process outlined in the Elections Act, 2011

 

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 Senate v. National Assembly tussle in the promotion of devolved government: In early 2013, the Senate introduced a Revenue Bill in their House before it was enacted in the National Assembly, hence a confrontational move.[25]The members of the National Assembly felt that the Senate had no constitutional mandate to revisit the Bill. The Supreme Court in it Advisory opinion held that "the division of Revenue Bill deals with the amount of money that is to be allocated to the Counties from the National Government. Therefore this is a Bill concerning county governments[26] rather than a money Bill (Speaker of the Senate & Another v Hon. Attorney General & 3 Others [2013] Eklr Advisory Opinion Reference 2 of 2013)

 

The National Assembly has recently approved a motion by Mwingi Central Member of Parliament Joe Mutambu that seeks to reduce the number of MPs from the current 290 to 141 and the number of counties from 47 to 10 namely: Coast, Upper Eastern, Lower Eastern, Central, Nairobi, North Rift Valley, South Rift Valley, Nyanza, Western and North Eastern. The motion also seeks to push for the scrapping of some nominated representatives to Parliament and county assemblies. The Bill also seeks to scrap article 81(b) on the two thirds gender rule of the members of the Public bodies.[27]

 

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

 

3.5. The Judiciary

The judiciary is primarily charged with the responsibility of ensuring that there is fair and effective administration of justice. Consequently, it also provides a safeguard against the abuse of power by the Executive, and in certain circumstances the Legislature; this is in accordance with the principles of the doctrine of separation of powers. The judiciary, in relations to the principle of checks and balances has the sole mandate of ensuring that the other arms of government act within the Constitution. It has both institutional and financial independence.

 

The 2010 constitution establishes two categories of courts:

 

 

 

The creation of specialized courts with the status of the High Court is a new concept brought about by the new Constitution 2010.  The Industrial Court has been succeeded by the Labour and Employment Court. A specialized court dealing with land and environment has also been established.

 

Under Article 159 of the Constitution of Kenya 2010, the Judicial Authority is derived from the people  and vests in, and shall be exercised by the courts  and tribunals  established by  or under the  Constitution. The judiciary is the ultimate interpreter of the Constitution[28]

 

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.[29] 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.[30] Judges enjoy security of tenure,[31] have their salaries charged on the Consolidated Fund,[32] cannot have their salaries and benefits varied to their disadvantage[33] and are immune from any action or suit in respect of anything done in good faith in exercise of their judicial function.[34]  Critics however still argue that the safeguards given to judges to ensure independence of the judiciary should extend to the magistrates.[35] 

 

Independence of the Judiciary has also been enhanced and guaranteed under Article 160 of the Constitution of Kenya.

 

·       In the exercise of judicial authority, the Judiciary as constituted by Article 161, shall be subject only to the Constitution and the law and shall not be subject to the control or direction of any person or authority.

·       The office of the judge of a superior court shall not be abolished while there is a substantive holder of the office.

·       The remuneration and benefits payable to or in respect of judges shall be a charge on the Consolidated Fund.

 

 

The Judiciary Fund is charged on the Consolidated Fund [36] and is used for administrative expenses of the Judiciary and such purposes as are necessary to discharge the functions of the Judiciary. [37] The establishment of the Judiciary Fund charged on the Consolidated Fund institutionalises judicial independence. [38]

 

The remuneration and benefits payable to, or in respect of, a judge shall not be varied to the disadvantage of that judge, and the retirement benefits of a retired judge shall not be varied to the disadvantage of the retired judge during the lifetime of that retired judge.  Judges raised this to argue that their income should not be taxed.[39]There were similar arguments regarding the Salaries and /remuneration Commission's proposal to review the salaries and remuneration of state officers.

 

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. [40] 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.[41] 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 [42] 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.[43] The disciplinary mechanism instils a sense of accountability of judicial officers in exercising their mandate. Certain critics [44] 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. [45] 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….” [46] 

 

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.[47] Secondly, matters of Christian personal laws are sufficiently addressed in the Kenyan Statues, including the African Christian Marriage and Divorce Act[48] as well as Matrimonial Causes Act[49] which bear their origin from the English Common Law.[50] 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.

 

4. The Structure and Jurisdiction of the Courts

 

4.1. 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. The quorum of the Supreme Court is set for five although all the seven judges can sit. 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 (except those touching on the interpretation or application of the Constitution). The Supreme Court set out the test for determining whether a matter is of general public in the case of Hermanus Phillipus Steyn v. Giovanni Gnechi-Ruscone [51]

 

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 however in order to note that advisory role of the Supreme Court is not as straight forward since the Supreme Court will have to determine the following:

 

 

A general concern about the Supreme Court having a broad advisory opinion not limited to matters of county governments is that it will present difficulties for the constitutional doctrine of ripeness. Whose rationale is to prevent a party from prematurely approaching a court when the party has not been subjected to prejudice?

 

The advisory opinion given by the Supreme Court is as binding as a normal judgement. (In Re the matter of the Interim Independent Electoral Commission [2011]). All lower courts are bound by the Supreme Court's decisions. However, the Supreme Court shall not be bound by its previous decisions. This is in the interest of justice and of the development of the law and jurisprudence in accordance with political, social and economic circumstances that are bound to change in the future. The Supreme Court also has special jurisdiction according to Section 14 of the Supreme Court Act No 7 of 2011

 

4.2. The Court of Appeals

It was established on October 28th, 1977 after the constitution of Kenya Amendment Act (1977).[52] The precise number of judges who will constitute the court is left by the constitution to be prescribed by an Act of parliament, namely the Judicature Act, Cap 8 of the Laws of Kenya. Although Section 7(2) of Cap 8 stipulates the minimum number of judges to be twelve, they, from among themselves, elect their administrative head, to wit, the President of the Court of Appeal. [53] The Court of Appeal hears appeals from the High Court as well as from courts and tribunals prescribed by national statute. [54] 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 Hierarchy of Appeals:

 

Appeals from the Resident Magistrate’s court lie to the High Court. Appeals from the High Court lie to the court of Appeal. Appeals from the subordinate courts are heard by one judge of the high court except in certain particular cases where the Chief Justice can direct that the appeal be heard by two or more judges. Such directions may also be given by the Chief Justice before the hearing of an appeal or at any time before the judgment is received.

 

Where there are two judges and they disagree, under Section 60 where an appeal is heard by a court consisting of two or more judges, the appeal should be decided in accordance with the decisions of the majority of the judges. In a case of two judges with a divided opinion, the appeal should be dismissed and to prevent that they normally put an uneven number of the Judges on the bench. Section 60 says that the opinion of the majority of judges should be upheld but Order 40 says that where the court is equally divided, the Appeal should be dismissed.

 

Filing of Appeals:

 

Appeals from the High Court are filed by lodging a memorandum of appeal which is usually set out in the same manner as pleadings. The grounds are set out in separate paragraphs indicating the reasons why one objects to the decision of the court and numbered consecutively. It is very important to make sure that the grounds are set out comprehensively because submissions will not be made on any grounds not set out in the memorandum of appeal. In case there are new grounds for appeal, the appellant must seek the leave of the court. The court then uses its discretionary powers and can deny or accept the new ground(s) of appeal.

 

The detailed format on how to prepare a memorandum of appeal is set out in Sections 65-69 of the Civil Procedure Rules and in order 41. Section 65-69 enact the substantive law as regards to fast appeals while order 41 lays down the procedure relating to it. An appeal is a judicial examination by a higher court of the decision of a lower court. Whereas the memorandum of appeal contains the grounds on which the judicial examination is invited.

 

In order for an Appeal to be said to be validly presented, the following requirements must be complied with

 

·       It must be in the form of a memorandum setting forth the grounds on which one objects to the decree.

·       It must be in the format and present as a record of Appeal.

·       It must be signed by the Appellant or their Agent.

·       It must be presented to the Court or to such officer as appointed by the court.

·       The Memorandum must be accompanied by a certified copy of the decree.

·       It must be accompanied by a certified copy of the judgment unless the court dispenses with it.

·       Where the Appeal is against a money decree the Appellant must deposit the decretal amount or furnish the security if required by the court.

 

How to Prepare a Memorandum on Appeal:

 

A Memorandum of Appeal should be prepared by carefully considering the following:

 

 

The Findings thereon;

 

 

One can only appeal on one issue. Suppose the court finds you negligent and thus liable. You can appeal on the ground of damages and say for instance that the judge erred in assigning the quantum of damages.

 

Presentation of the Appeal:

 

The Appeal must be presented within a prescribed time. If the limitation period for filing an Appeal has expired, you can apply for an extension of time to file the appeal[55]

 

Stay of Execution:

 

The Appeal does not operate as a stay of execution. Even if an appeal has been lodged, and all parties served, the decree holder can proceed and apply for execution. However the judgment debtor can apply for a stay of execution on the ground that an appeal is intended or that an appeal has been filed. If no appeal has been filed but is intended the application for stay of execution should be made to the court that has given the order or the decree but an appeal has already been filed, the application for stay should be made to the appellate court.

 

When is an Appeal deemed to Have Been Filed?

 

For the purposes of a stay of execution an appeal is deemed to have been filed as soon as the notice of appeal is filed.

 

Application for Stay of Execution:

 

It is made by way of Notice of Motion under Order 41 Rule 4 and Section 3A of the Civil Procedure Act.

 

The court looks at certain conditions before granting a stay of execution. The following conditions must be satisfied before the court can grant a stay.

 

 

How the Court Deals with the Appeals:

 

Section 79 of the Civil Procedure Rules states that “[t]he court has power to summarily dismiss an Appeal. The Court has the opportunity in the first instance to peruse the record of appeal and if no sufficient grounds for interfering with the decree are found, the court may reject the Appeal. If the court does not reject the Appeal, then it proceeds to hearing. The fact that the court has admitted an appeal does not mean a default judgment can be given, so if one does not appear, the court can dismiss the Appeal for default, it can also allow the Appeal for default. So just like a hearing, parties are required to appear at the hearing but unlike the High Court you do not have to appear for the Hearing in person. You may find that in a case where the appellant does not wish to appear but would like the Appeal to proceed in that case   a declaration in writing that you do not wish to be present in person or through an advocate has to be filed. In such a case you must then file two copies of your sole arguments which you desire to submit, once you file the two copies one will be served on the respondent and the other is retained in the court file. The option is also available to the Respondent: they can file their response in writing.”

 

Suppose the Appellant appears and the Respondent does not appear? There will be an ex parte decision. You can always apply to set aside an ex parte judgment but you must show sufficient cause for not appearing.

 

Procedure at the Hearing of an Appeal:

 

The procedure is that the Appellant has the right to begin. After hearing the Appellant in support of the appeal, if the court finds that the Appeal has no substance it can dismiss the appeal without calling the Respondent. Additional of parties or amendments can be done in the Court of Appeal as well.

 

Powers of the Appellate Court:

 

Upon hearing the Appeal the Appellate Court may exercise the following powers:

 

 

Remand the case;

 

 

The court will take various options depending on the grounds raised in the Appeal. The Appeal Court will confine you to points.

 

 

In certain cases the record of appeal may not be sufficient to enable the Court to pronounce Judgment or to enable it finally determine the Appeal. In which case they will opt to remand the case.

 

Power to Remand the Case:

 

The general rule is that the court should as far as possible dispose the case or an Appeal using the evidence on record and should not be remanded for fresh evidence except in rare cases. Remanded basically means to send back.

 

When can the Court of Appeal Remand a Case?

 

 

Suit disposed on a Preliminary Point:

 

A point can be said to be preliminary if it is such that the decision thereon in a particular way is sufficient to dispose of the whole suit without the necessity of a decision on the other points of the case. A preliminary point may be one of fact or of law. But the decision thereon must have avoided the necessity for a full hearing of the suit. For example

 

Preliminary Point of Law:

 

Suppose the issue of limitation of time or the doctrine of Res Judicata or the issue that the pleadings do not disclose a course of action are raised at the trial court. This is an example of a preliminary point of law.

 

Preliminary Point of Fact:

 

Suppose a lower court dismisses the suit on the ground that the plaintiff is estopped from proving their case because maybe there was a prior agreement relating to the facts, again the same rule will apply that as long as the decision was based on a preliminary point, then the Court of Appeal will set aside that decision.

 

 

The Court of Appeal may order that certain issues be framed and that they be referred to the lower court to be tried. The Court of Appeal will exercise this power where the trial court did not frame issues properly or omitted to try a certain issue or omitted to determine a certain question of fact which is essential to the right decision of the suit upon the merits. The court will frame those issues and then refer them to the lower court for them to be tried. Normally it will refer them with certain directions. The court of Appeal when they have all the issues on their bench can decide on the issues. The court of appeal frames the issues sends them back to lower court and after they are dealt with they are sent back to the court of Appeal.

 

 

As we said at the beginning no additional evidence is taken at the court of Appeal unless

 

·       The lower court refused evidence which ought to have been admitted;

·       Where the Court of Appeal needs certain documents or certain evidence to enable it to pronounce judgment;

·       For any other substantial cause.

 

How Does the Court of Appeal Take Fresh Evidence?

 

 

Once the evidence is obtained, it is sent to the Court of Appeal and is used by the Court of Appeal to make its decision

 

How is Fresh Evidence Taken?

 

 

If it was not improper it cannot be used as a basis for the Court of Appeal to admit fresh evidence. The court of appeal may find out that there is certain evidence they need to come to a final decision, they can ask for fresh evidence to be taken or they can take it themselves which is rare.

 

 

The power to order a new trial is intertwined with the power of review. The decisions of the Court of Appeal are binding on all other subordinate courts, including the High Court.

 

4.3. The High Court

The high court is the third highest court in the hierarchy of the court system in the Constitution. The High Court's composition, organization and administration are to be provided for by an Act of Parliament. The court is to be provided for by a principal judge to be elected by the judges of the High Court from amongst themselves.

 

The High Court has original jurisdiction in criminal and civil matters; jurisdiction to determine whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened; jurisdiction to hear appeals from tribunals appointed for removal of a person from office; and jurisdiction to hear any question respecting the interpretation of the Constitution.  The High Court in Nairobi has a Family Division, Criminal Division, Civil Division, Commercial Division, Constitutional and Judicial Review Division. There are 15 High Court stations in the country.

 

Composition: Ordinarily, the High Court is duly constituted by one Judge sitting alone. However there are instances where two or more High Court Judges may be required to determine certain kinds of cases.

 

Appointment of Judges:  Are appointed by the President in accordance with the advice of Judicial Service Commission. There are laid down special qualifications required of a person to be eligible for appointment as a Judge, namely:

 

·       At least ten years’ experience as a superior court judge or professionally qualified magistrate; or

·       At least ten years’ experience as a distinguished academic or legal practitioner or such experience in other relevant legal field; or

·       Held the qualifications specified in paragraphs (a) and (b) for a period amounting, in the aggregate, to ten years.

 

Jurisdiction:

 

·       The High Court has unlimited original jurisdiction in criminal and civil matters.

 

·       The High Court has jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened.

 

·       The High Court has jurisdiction to hear an appeal from a decision of a tribunal appointed under the constitution or national legislation to consider the removal of a person from office, other than a tribunal appointed under Article 144.

 

·       The High Court has jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of: the question whether any law is inconsistent with or in contravention of the Constitution, the question whether anything said to be done under the authority of the Constitution or of any law is inconsistent with, or in contravention of the Constitution, any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government, and a question relating to conflict of laws under Article 191;any other jurisdiction, original or appellate, conferred on it by legislation.

 

·       The High Court does not have jurisdiction in respect of matters reserved for the exclusive jurisdiction of the Supreme Court under this Constitution or falling within the jurisdiction of the courts contemplated in Article 162 (2).

 

·       The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court. Also being a Superior court of record means that the decisions of the High Court as precedents, are binding on the subordinate courts by the doctrine of stare decisis.

 

·       Although High Court has unlimited original jurisdiction in civil and criminal cases in actual practice, it will hear those criminal cases which cannot be tried by the subordinate courts i.e. murder and treason whereas in civil cases, it has jurisdiction where the value of the subject matter, in dispute exceeds Kshs. 500,000.00. The High Court has power to pass any sentence authorized by law.

 

In addition to the ordinary civil and criminal jurisdiction or the High Court, there are other matters, which can only be heard by the High Court. Thus, the High Court enjoys special powers and jurisdiction in the following matters as conferred to it by the constitution and other legislations some of which are given hereinafter:

 

Supervisory Jurisdiction:

 

The Constitution confers specific, powers on the High Court to exercise supervisory jurisdiction in any civil and criminal proceedings before subordinate courts and may make such orders, issue such writs and give such directions as may consider appropriate for the purpose of ensuring that justice is duly administered by such courts. This includes the power of the High Court to transfer proceedings from one court to the other.

 

To invoke the supervisory jurisdiction of the High Court a person must have exhausted all other available remedies and right of appeal. In exercise of its supervisory powers under judicial review, the high court may issue any of the prerogative orders of:

 

·       Certiorari – The term means to “be informed”. This is an Order issued by the High Court directed at an inferior court body exercising judicial or quasi-judicial functions to have the records of the proceedings presented to the High Court for the purposes: To Secure an impartial trial, To review an excess of jurisdiction, To challenge an ultra vires act, To correct errors of law on the face of the record. To quash a judicial decision made against the rules of natural justice. An order of certiorari will be wherever anybody of persons having legal authority to determine questions affecting the rights and having a duty to act judicially, acts in excess of their legal authority. It therefore serves to quash what has been done irregularly.

 

·       Mandamus- the literal meaning of mandamus is "we command". This is an Order issued by the High Court to any person or body commanding him or them to perform a public duty imposed by law or state. The order is available to compel administrative tribunals to do their duty e.g. to compel a licensing board to issue a license on application of him who has met the prescribed criteria.

 

·       Prohibition- This is an order issued by the High Court to prevent an inferior court or tribunal for hearing or continuing to hear a case either in excess of its jurisdiction or in violation of the rules of natural justice.

 

·       Writ of Habeas Corpus- Habeas corpus means "provide the body dead or alive". This order is issued where the personal liberty of a person is curtailed by arrest and confinement without legal justification. By issuing this order, the High Court calls upon the person holding the body to answer by what authority are they continuing to withhold the individual and with the aims at securing release of such persons held apparently without legal justification.

 

Admiralty Jurisdiction:

 

Section 4 of the Judicature Act Chapter 8 (1967) provides that the High Court will act as a court of admiralty and will decide “matters arising on the high seas or in territorial waters or upon any lake or other navigable inland waters in Kenya”. The law applicable to be exercised “the conformity with international law and the comity of nations”.

 

Election Jurisdiction:

 

Under the National Assembly and Presidential Election Act, the High court has special powers to hear and determine disputes arising from the national electoral process. The High Court may make an order as it deems fit, including the nullification of the election results upon hearing of a petition presented to it by a voter or loser in the election.

 

For the High Court to nullify the election of a Member of Parliament, the petitioner must prove that an election offence has been committed. The composition of the High court is that one (1) Judge sits to determine dispute in parliamentary election while Three (3) Judges must sit if it is presidential election. Any appeal on the High Court decision on Presidential election goes to the Court of Appeal where at least five (5) Judges will sit to determine the appeal. Disputes in the election of councilors go to subordinate courts.

 

Interpretation of the Constitution:

 

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 question to the High Court. The High Court shall be composed of an uneven number of judges, not being less than three when it determines the constitutional question referred to it. The decision of the High Court is binding on the Court that referred the question to the High Court and it must dispose of the case in accordance with the High Court’s decision.

 

Succession/Probate Jurisdiction:

 

The Probate Division of the High court has jurisdiction to hear any application and determine any dispute and pronounce such decree and issue such orders as my be expedient in inheritance matters e.g. the High Court may issue probate i.e. a person has been validly appointed by a will to administer the property of the deceased.

 

Matrimonial Cases:

 

The court exercises jurisdiction in divorce matters. In exercise of its matrimonial jurisdiction, the High Court may issue orders for:

 

·       Dissolution of marriage.

·       Nullity of marriage.

·       Separation and maintenance (alimony).

·       Custody, adoption and guardianship of infants

·       Spousal Property and financial adjustments etc.

 

Other Powers:

 

·       To protect and enforce Fundamental rights and Freedoms of individuals which are set out in Chapter Four of the Constitution also otherwise referred to as Bill of Rights.

·       To hear and determine Bankruptcy proceedings.

·       To supervise winding up of dissolved companies.

 

Removal from Office:

 

Generally, all judges enjoy security of tenure during their term of office. Article 168 therefore serves to provide for the mechanism for removal from office of a judge of a superior court. Accordingly, the removal of a judge of a superior court is only possible on the grounds set out in Article 168(1). It can only be commenced by the JSC either on its own motion or acting on a petition by any person which it is satisfied discloses a ground for removal. The JSC, being satisfied that the petition discloses a ground for removal, is required to send a petition to the President, who is to set up a tribunal to investigate the judge. The tribunal shall inquire into the matter and report on the facts and make binding recommendations to the President, who shall act in accordance with the recommendations of the tribunal.

 

Other Courts with Status of the High Court:

 

 

 

 

4.4. 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.[58] The jurisdiction and functions of the subordinate courts are statute given.[59]

 

Magistrate Courts:

 

They are established under the Magistrates Courts Act (Cap 10) at the District level. Section 7(2) gives the Chief Justice power to designate any two or more districts a joint district for the purpose of the above Act (as a single judicial district). They have criminal jurisdiction and powers in proceedings of a criminal nature as are for the time being conferred on it by the Criminal Procedure Code (Cap. 75 of the Laws of Kenya) or any other written law. The magistrates’ courts shall have and exercise jurisdiction and powers in proceedings of a civil nature in which the value of the subject matter in dispute does not exceed:

 

·       Seven million shillings for a Chief Magistrate

·       Five million shillings for a Senior Principal Magistrate

·       Four million shillings for a Principal Magistrate

·       Three million shillings for a Senior Resident Magistrate

·       Two million shillings for a Resident Magistrate.

 

The magistrate courts act gives district magistrate courts unlimited powers to hear cases in respect of customary law. Section 2 provides that claims under customary law means a claim concerning any of the following matters; Land held under customary law Marriages, divorce, maintenance and dowry, Seduction and impregnating an unmarried woman/girl, Enticement of or adultery with a married woman, Matters affecting status, and in particular the status of women, widows and children including guardianship, customary, adoption and legitimacy. Following an amendment to the Magistrates Courts Act in 1981, no Magistrate’s court can exercise jurisdiction and powers in cases of a civil nature involving:

 

·       The beneficial ownership of land

·       The determination of boundaries to land, including land held in common

·       A claim to occupy or work land

·       Trespass to land

·       Such disputes are referred to a panel of elders, consisting of either two or more elders agreed upon by the parties, preside over by a district officer, or a person appointed by the District Officer.

 

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. Unlike other courts, the rules of evidence as contained in the Evidence Act do not apply in the Kadhis' Court. The law and the rules of evidence to be applied in a Kadhis' court shall be those applicable under section 6 of the Kadhis' court act. 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:

 

 

People in the Judiciary:

 

Judges:

 

The chief justice is appointed by the President, Section 166(1) of the 2010 Constitution. The other judges of the Supreme Court and the judges of the Court of Appeal and High court are not further vetted by parliament after the recommendation of Judicial Service Commission. They only await formal appointment by the president. The law requires that persons to be appointed as Chief Justice, Deputy Chief Justice  and the judges of the Supreme Court to have at least fifteen years’ experience either as a superior court judge distinguished academic, judicial officer, legal practitioner or experience in other relevant field. On the other hand, the Court of Appeal and High Court judges need at least 10 years' experience. The Vetting of Judges and Magistrates Act No. 2 of 2011 sets out mechanisms and procedures for vetting of judges and magistrates pursuant to the requirements of Section 23 of the Sixth Schedule of the Constitution. It also sets out the particular attributes or character traits the judge or magistrate should have.  Each judge enjoys the privilege of security of tenure. This basically means that no judge or the Attorney General will be removed from office, except on grounds of incapacity or misbehavior.  The second connotation of security of tenure is a right to adequate remuneration, pensions and conditions of service. According to the ICJ (Kenya- Judicial Independence, Corruption and Reform) it is acknowledged that security of tenure is not meant to protect judges per se, but to protect the interest of the public in the independent and impartial exercise of judicial functions without undue interference. The constitution elaborates on the removal of judges in Article 168.

 

Registrar of the High Court:

 

He is the administrative head of the high court and also the accounting officer. He is deputized by the Deputy registrar of the high court.

 

Magistrates:

 

They are appointed by the Judicial Service Commission.

 

Assessors:

 

The Criminal Procedure Code section 262 provides for assessors. It states that “all trials before the High Court shall be with the aid of assessors.” Section 263 goes further to explain the minimum number of assessors to be 3 in a trial. People from the ages of 21 to 60 can be assessors except those exempted by section 266. They include: President, members of cabinet, speaker, legal practitioners in active practice or ministers actively discharging their duties in their respective religions and members of the police force. Assessors are appointed by the court from the list of those summoned to serve as assessors at the sessions (section 297). Assessors give their opinion as to whether the accused is guilty or not but the judge is not bound by any such opinion.

 

Court Clerks:

 

They are appointed by the Public Service Commission. They take case, file them, receive payment, keep files, assist in court proceedings such as court presentations and as provided for under sections 217 and 218 of the CPC, draw up conviction orders and may certify copies of the order of acquittal.

 

Recorders:

 

They take down court proceedings. Section 18 of the Magistrates Court Act provides that "[e]very magistrate’s court shall keep such records of proceedings and submit such returns of proceedings to the High court as the Chief Justice may from time to time direct."

 

5. Constitutional Commissions and Independent Offices

 

Article 248 of the New Constitution introduces ten Constitutional Commissions and two Independent Offices. [60] 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:

 

·       Commission for Implementation of the Constitution;

·       Judicial Service Commission;

·       Public Service Commission;

·       Commission on Revenue Allocation;

·       Salaries & Remuneration Commission;

·       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

 

These commissions are expected to check presidential and public authority at two levels. First, the general constitutional mandate of all commissions under Article 249 which is to protect the sovereignty of the people, secure the observance by all state organs of democratic values and principles, and promote constitutionalism. Second, the constitutional commissions are mandated with specific constitutional powers that were under the 1969 Constitution presidential powers. These include powers to constitute and abolish offices in the public service, powers to alter administrative boundaries, powers on revenue allocation and financial and administrative powers over parliament and the Judiciary.

 

Judicial Service Commission:

 

It is established under Article 171 of the Constitution of Kenya. The 2010 constitution retains its tradition since independence of settling for a fully professionalized JSC. The members of the JSC with the exception of the Attorney General serve for a term of five years which is renewable for one further term. The Judicial Service Commission is established under Article 171 of the Constitution and consists of the following 11 members:

 

·       The Chief Justice, who shall be the chairperson of the Commission;

·       One Supreme Court judge elected by the judges of the Supreme Court;

·       One Court of Appeal judge elected by the judges of the Court of Appeal;

·       One High Court judge and one magistrate, one a woman and one a man, elected by the members of the association of judges and magistrates;

·       The Attorney-General;

·       Two advocates, one a woman and one a man, each of whom has at least fifteen years’ experience, elected by the members of the statutory body responsible for the professional regulation of advocates;

One person nominated by the Public Service Commission; and

One woman and one man to represent the public, not being lawyers, appointed by the President with the approval of the National Assembly.

 

The Chief Registrar of the Judiciary is the Secretary to the Commission. In the Sixth Schedule of the constitution, section 20 discusses the JSC. The commission shall be appointed within sixty days of the effective date and deemed properly constituted. It also sets out a condition that the commission shall not perform its functions unless five members have been appointed. It also stipulates that certain members of the commission are to serve for only three years. They include: Court of Appeal judge, the High Court judge, one of the advocates appointed and one of the members appointed by the president.

 

The former president Mwai Kibaki nominated Justice Albasir Visram as the new Chief Justice on January 2011 without involving the former Prime Minister Raila Odinga and the Judicial Service Commission. The nomination was rejected by among others, the JSC. President Kibaki withdrew the nomination and deferred the matter to the JSC.

 

Some of the notable events carried out by the newly appointed JSC under the new constitution include: Public interviews for the Chief Justice and the Deputy Chief Justice positions in May 2011. JSC nominated lawyers Dr. Willy Mutunga and Nancy Baraza. The names were forwarded to President Kibaki who then submitted them to parliament after consultation with the Prime Minister[61]

 

Functions of the Judicial Service Commission:

 

 

6. Transition

Following the March 4, 2013 General Elections, there was controversy as to the manner in which the transition was to take place. The Head of civil Service, Francis Muthaura asked that incumbent Cabinet Ministers, who had been elected to other offices, resign from Cabinet. The circular to this effect explained that the reason as to this instruction was that the law did not allow individuals to hold two offices immediately.

 

However, the AG had stated that the President, the Prime Minister, Vice President, Cabinet Ministers and Assistant Ministers should remain in office until the assumption of office by duly elected President and Cabinet Secretaries have been appointed. 

 

7. 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:

 

7.1. 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.

 

7.2. 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.

 

7.3. Specific Acts of Parliament of the United Kingdom

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

 

 

7.4. 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.

 

7.5. 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.

 

7.6. 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.

 

7.7. 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.

 

7.8. 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...

 

7.9. 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.

 

8. Law Reporting

 

8.1. 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.

 

8.2. 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.

 

8.3. 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.

 

8.4. 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:

 

 

8.5. Journals

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

 

 

9. 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] Cf. Maasai Morans.

[2] Cf. Orkoiyot of the Nandi.

[3] Ghai and McAuslan (1970) Public Law and Political Change in Kenya; Jagjit Singh, Portrait of an Asian and an East African.

[4] Rev Dr. Timothy Njoya & 17 Others v Attorney General & 218 Others Petition No. 137 of 2011 reported in http://kenyalaw.org/newsletter/20130301.html.  

[5] Article 152(3) of the Constitution of Kenya.

[6] Article 172 of the Constitution of Kenya.

[7] University of London. Constitutional Fundamentals: Separation of Powers, p. 45.

[8] 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 

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

[10] Ibid.

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

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

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

[14] Leadership and Integrity Act 2012 and Article 260 of the constitution.

[15] Cf free maternity services introduced by the government.

[16] Cf the laptop promise by the Jubilee Government vis-a-vis student fees or loans and human resource in the education sector. 

[17] President Uhuru Kenyatta’s move  to pay the Anglo Leasing firm Kshs 4.1 Billion, questions arose as to the constitutionality of t his move ad whether it was a violation of Article 201 of the constitution touching on principles of public finance:2013/14 budget debates

[18] Essentials like bread, milk may be subject to tax increment. The VAT Act 2013 had initially imposed a 16 % VAT charge on basic commodities which were previously not subject to VAT at all. Some of the clauses setting the provision were however removed after public clamor.

[19] Article 206 of the Constitution of Kenya

[20] Article 124 Constitution of Kenya

[21] Article 123(4)

[22] Article 123(1)

[23] Election Act, 2011; Ethics and Anti-Corruption Commission Act, 2011; the Leadership and Integrity Bill, 2012; KRA Act; HELB Act.

[24] Article 104 constitution

[26] Article 114 of the Constitution of Kenya

[27] http://www.standardmedia.co.ke"Gender Agency opposes bid to scrap offices"

[28] Marbury v. Madison (1803)

[29] 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.’

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

[31] ibid, art 160(2).

[32] ibid, art 160(3).

[33] ibid, art 160(4).

[34] ibid, art 160(5).

[35] 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.

[36] ibid, art 173(4).

[37] ibid, art 173(2).

[38] New Constitution of Kenya, art 173.

[39] Daily Nation, June 9, 2014 http:/www.nation.co.ke/news/-/1056/476746/-/5g8sglz/-/index.html (server occasionally unavailable due to service maintenance or capacity problems).

[40] ibid, art 159(2).

[41] ibid, art 166(3).

[42] 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.

[43] Constitution of Kenya, art 168.

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

[45] 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).

[46] ibid.

[47] 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.

[48] 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.

[49] (Cap 152) Laws of Kenya.

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

[51] Supreme Court , Application No 4 of 2012; [2013]eKLR

[52] Section 164 (1)(a)  of the Constitution of Kenya 2010 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; and

(b) shall be organised and administered in the manner prescribed

by an Act of Parliament

[53] ibid, art 164(2).

[54] ibid, art 164(3).

[55]  The Appellate Jurisdiction Act (Court of Appeal Rules)

[56] 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 san 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.’

[57] 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.’

[58] ibid, art 169(1).

[59] ibid, art 169(2).

[60] Chapter 15, New Constitution.

[61] Daily Nation 2011"Lawyer Mutunga nominated for CJ post"