UPDATE: Researching Kenyan Law

By Tom Ojienda and Leonard Obura Aloo

Update by Tom Ojienda, Brian Ojienda and Gregory Otieno

Professor Tom Ojienda holds a Doctorate degree (LLD) from the University of South Africa, an LLM from King’s College London and a Bachelor of Law from the University of Nairobi. He also 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 over 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. Prof. Ojienda was involved in the establishment of the Legal Aid Clinic at Moi University and the Juvenile Legal Aid Project of the Rift Valley Law Society.[1] Prof. Ojienda is a Senior Counsel and an Advocate with over twenty years of experience. He is the immediate former representative of the Law Society of Kenya to 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.[2] 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). He is a human rights trainer for the Kenya National Commission on Human Rights and has presented several papers at many national and international conferences.

Brian Ojienda holds an LLM in multi-disciplinary human rights from the University of Pretoria, a Bachelor of Laws degree from the Catholic University of Eastern Africa and a post graduate diploma from the Kenya School of Law. He is an advocate of the High Court of Kenya and a member of the Law Society of Kenya. Brian has taught trial advocacy and administrative law at the law school in Nazarene University. He has also previously worked for the United Nations Development Programme. Brian takes a keen interest in subjects related to the studies of constitutional law and human rights.

Gregory Otieno is part of the legal research team at Professor Tom Ojienda & Associates. He holds a Bachelor of Laws (LL.B.) from Strathmore University. He is also at an advanced level of Certified Public Accountant studies. Gregory has a bias towards research and practice in corporate and commercial law including the areas of capital markets, corporate mergers and acquisitions, private equity and real estate and construction.

Published March/April 2020

(Previously updated by Tom Ojienda and Leonard Obura Aloo in March 2008; and by Tom Ojienda in September 2011 and in February 2016)

See the Archive Version!

1. Introduction

The Republic of Kenya is located in East Africa. It lies on the equator and is bordered by Ethiopia to the north, Somalia to the east, Tanzania to the south, Uganda to the west and South Sudan to the northwest, with the Indian Ocean running along the southeast border. Kenya is a diverse nation with about 42 distinct ethnic groups.[3] The official languages of Kenya are Kiswahili and English[4] and the currency is the Kenyan Shilling. Kenya’s capital and oldest city is Nairobi.

Kenya is a multiparty democratic state.[5] The President of Kenya is the head of state and government.[6] Kenya has two levels of government: the national level and the county level. The governments at the national and county levels are distinct and inter-independent.[7] Powers of government are shared between both levels, with most power to set national policy and raise revenue remaining at the national level while certain key delivery functions are devolved to the county level.[8] The counties are 47 in number, each with its own Governor, County Assembly and County Executive Committee. In this decentralized system of government, two of the three arms of national government, namely the Legislature and the Executive are devolved to the political and administrative counties.

Like many other modern states, Kenya has adopted the separation of powers model of governance. Separation of powers is a doctrine of constitutional law that prescribes against concentration of state power i.e. legislative, executive and judicial function in one body. The doctrine is also known as the system of checks and balances, because each state organ is given certain powers so as to check and balance the other branches.[9] In Kenya, the doctrine of separation of powers applies at both national and county levels.[10] Separation of powers is entrenched vide Article 1(3) of the Constitution of Kenya, 2010.

2. Historical Background

The territory of what is now Kenya did not exist before British colonization. Prior to 1895 (the year Kenya was declared a protectorate of the British Empire) ‘Kenya’ had a rich variety of autonomous communities or social formations with distinct languages and customs. The largest political unit was the collectivity of a few families related by blood and there was very little impetus for large-scale state formation.[11] Societies in the pre-colonial period either practiced crop cultivation, livestock keeping or a mixture of both. Production was primarily for collective subsistence rather than individual accumulation and both the agrarian and pastoralist societies left large tracts of land for resource management purposes. The colonial white settlers erroneously perceived any tract of land left fallow as no man’s land and annexed it.

With the onset of colonialism, there arose a need for a legislative and administrative system to govern the inhabitants. 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 customary law/ Traditional Justice systems. The British now had responsibility for administration, for protecting all within the colony.

Colonialism in Kenya undermined the territorial integrity of most of Kenya’s ethnic groups, and solidified ethnic distinctions for the purpose of divide and rule. Many of Kenya’s ethnic communities resisted colonial oppression throughout various periods of British rule – well known resistance movements emerged from the Maasai, Nandi, and Kikuyu communities. Kenya gained independence from British colonial rule in 1963.[12] As a result of British administration for over six decades, the Kenyan legal system borrows heavily from the English legal system.

3. An Overview of the Kenyan Legal System

The Kenyan legal system traces its origins to the British Common law system. Common law can be defined as ‘The body of law derived from judicial decisions, rather than from statutes or constitutions.[13] The primary sources of Kenyan law are enumerated in Section 3 of the Judicature Act (Chapter 8 of the Laws of Kenya) as comprising of the following.

The Constitution, which 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 a particular provision in the Constitution.

All other written laws, including Acts of Parliament, which are passed by parliament and also include subsidiary legislation, that is, laws made under the authority of an Act of Parliament. The substance of common law and the doctrines of equity, which are only applicable to Kenyan citizens in so far as the circumstances of Kenya permit, subject to such qualifications as those circumstances may render necessary.

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.

African Customary Law, which is only applicable in 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.

The general rules of international law also form part of the Laws of Kenya. In fact, any treaty or convention ratified by Kenya forms part of the law of Kenya under the Constitution of Kenya, 2010.[14]

This section begins by providing highlights of the Constitutional reform process in Kenya. It then touches on the Constitution of Kenya, 2010. It proceeds to identify state organs in Kenya and elaborates on their powers and functions.

3.1. A Brief History of Constitutional Reform in Kenya

Kenya has had two substantive Constitutions since gaining independence: The 1963 independence constitution and the Constitution of Kenya, 2010. The 1963 constitution was a result of negotiations between Kenyan political parties and the British colonial government. It was amended numerous times between 1964- 1990[15] to ensure the political survival and succession of power by the then ruling party, the Kenya African National Union (KANU). More specifically, the amendments were aimed at consolidating power in the Presidency at the expense of other institutions, mostly the Judiciary. The net effect of these changes was a complete obliteration of the structures and systems of accountable governance.[16] The space for democratic organizing, political participation and also holding the state accountable for its actions shrunk.[17]

Fed up by a repressive, one party regime whose tenure was marred by detention without trial and weakening of the doctrine of the separation of powers, Kenyans began agitating for restoration of their fundamental rights and multiparty democracy. Support for change increased significantly and in 1991, the then ruling party, KANU was forced to restore multiparty democracy.[18] But a number of laws still restricted civil and political rights, the offence of sedition persisted and the Electoral Commission was not independent.[19] Kenyans felt that a new, tamper proof Constitution was required to guarantee fundamental rights and remedy historical injustices. Thus, the search for a new Constitution commenced.

A number of draft constitutions including the Bomas draft (2003) and the Wako draft (2005) were tabled but did not make it to the statute books. In 2009, a Committee of Experts (CoE) was appointed to spearhead delivery of a draft Constitution that would be acceptable to all Kenyans. The CoE submitted a final draft Constitution and a referendum was held on 4 August 2010. The draft Constitution was endorsed by 67% of Kenyan voters . It was promulgated on 27 August 2010.

In recent times, there have been attempts to amend the 2010 constitution. Last year on 9 March 2018, President Uhuru Kenyatta and his then chief political opponent, Raila Odinga shook hands and issued a joint presser titled ‘Building Bridges to a new Kenyan Nation’ (BBI).[20] A BBI team was constituted thereafter and charged with the mandate of conducting consultations with citizens on nine key thematic areas.[21] At the time of this publication, the BBI team was yet to issue its final report with findings and reform proposals. However, there is widespread speculation that the BBI’S town hall meetings with citizens have been a process of setting the ground for an eventual referendum.[22] At the same time, Ekuru Aukot’s punguza mzigo (reduce the load)bill to amend the Constitution is undergoing consideration in each of the 47 administrative counties in Kenya, after obtaining the support of over one million Kenyans. Ekuru, a former presidential aspirant, aims to lead Kenyans to a referendum. His bill resonates with a majority of Kenyans since it proposes, inter alia a radical reduction of political seats.[23] It remains unclear whether both the BBI proposals and punguza mzigo will culminate in two separate referendums.

3.2. The Constitution

In many respects, the current constitutional dispensation is a breath of fresh air. The president no longer has the powers to appoint and dismiss at will, the independence of the Judiciary is guaranteed and devolution has brought government closer to the governed.[24] 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 is the supreme law of the Republic and binds all persons and state organs at both levels of government.[25] Any law, including customary law that is inconsistent with the Constitution is void to the extent of that inconsistency, and any act or omission in contravention of the Constitution is invalid.[26] The Constitution of Kenya, 2010 is comprised of the following chapters:

3.3. Organs of the State

Sovereign power belongs to the people of Kenya and is exercised only in accordance with the Constitution.[27] Article 1(3) of the Constitution delegates sovereign power to the following state organs:

3.4. The Legislature

The authority to make laws in Kenya is primarily vested in two institutions: Parliament and County Assemblies. Parliament makes laws that apply nationally while County Assemblies make laws applying in the respective counties. The Parliament of Kenya consists of the National Assembly and the Senate.[28] In the previous constitutional regime, Parliament had only one chamber. Broadly speaking, the main functions of the Legislature are to make laws, protect the Constitution and promote democratic governance.[29]

The National Assembly consists of:

The Speaker presides over the meetings of the National Assembly and is an ex-officio member, bringing the total membership of the National Assembly to 350. The National Assembly enacts legislation that may cover both National and County issues. The National Assembly also plays an important, but not an exclusive, role in the financial control of Government expenditure. Specifically, it 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 Speaker of the Senate is an ex officio member, bringing the total membership of the Senate 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. It 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.[30] Noteworthy is that 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.[31] 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.[32]The electorate has the power to recall elected MPs and Senators following the due process outlined in the Elections Act, 2011.[33]

3.4.1. Kenya’s Lawmaking Process

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 Presidential assent, after which it is published in the Kenya Gazette and becomes an Act of Parliament.

Upon receiving a bill, the President can 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. If the latter takes place the President must assent to the Bill within 7 days. An Act will come into force 14 days after it is published in the Gazette.

The Senate and National Assembly occasionally tussle in the promotion of devolved government. In early 2013, the Speaker of the National Assembly reversed his decision to refer the division of revenue bill to the Senate. The Supreme Court in an 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[34] rather than a money Bill.” Hence the Division of Revenue Bill was subject to the legislative competencies of both houses.[35] The official languages of both houses of Parliament are Kiswahili, English and Kenyan sign language.

3.5. The Executive

The Executive is the arm of government that implements government laws and policies,[36] a role neither performed by the Judiciary nor the Legislature. It oversees, coordinates and administers over the country to ensure all systems run well. Prior to the adoption of the current 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). The Ministers were appointed by the President. Kenya had a Parliamentary president, who was both the Head of State and Government, and also a member of parliament. In the new dispensation, the national executive comprises the President, the deputy president and a maximum of 22 cabinet secretaries. A cabinet secretary is not a member of the Kenyan parliament and has to be vetted by a parliamentary committee before appointment.

Under the Constitution of Kenya, Executive authority derives from the people of Kenya. Chapter 9 of the Constitution of Kenya provides the principles of Executive Authority. The Constitution 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 implements all the laws made by parliament. A notable change in the new constitutional dispensation is that the president is both the Head of State and Government but is not a member of parliament. 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.

3.6. The Judiciary

The judiciary is primarily charged with the responsibility of ensuring that there is fair and effective administration of justice. It also provides a safeguard against the abuse of power by the Executive, and in certain circumstances the Legislature, 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 was a new concept brought about by the current Constitution. The Industrial Court has been succeeded by the Labour and Employment Court and the Environment and Land Court was established to hear and determine disputes relating to the environment and the use and occupation of, and title to, land.

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.[37]

The current Constitution has brought about welcome judicial reforms by establishing, at least on paper, a more independent, transparent and accountable judiciary.[38] Firstly, now in place is a more inclusive and accountable Judicial Service Commission charged with the broad mandate of promoting and facilitating the independence and accountability of the Judiciary and the efficient, effective and transparent administration of justice. Under art 171 of the Constitution, the Judicial Service Commission is composed of the Chief Justice, the Attorney General and representatives of each of the superior courts, the magistrates, the statutory body that regulates advocates, the Public Service Commission and lay persons. Even though the President appoints the representatives of the lay persons, such appointments must be approved by the National Assembly.[39] Secondly, judges enjoy security of tenure,[40] have their salaries charged to the Consolidated Fund,[41] cannot have their salaries and benefits varied to their disadvantage[42] and are immune from any action or suit in respect of anything done in good faith in exercise of their judicial function.[43] Critics however still argue that the safeguards given to judges to ensure independence of the judiciary should extend to the magistrates.[44]

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

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. A lot of emphasis is laid in promoting substantive justice rather than concentrating on technicalities.[48] 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.[49] This institutionalizes integrity in not only the judiciary, but also the person of the appointed judicial officers.

The Constitution establishes the Judicial Service Commission[50] 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 Kenyan 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.[51] The disciplinary mechanism instils a sense of accountability of judicial officers in exercising their mandate. Certain critics [52] 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. [53] Under an Agreement on 11 November 1963, 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….”[54]

The doctrine of pacta sunt servanda obliges the Kenyan Government to observe its Agreement of October 1963 with the Colonial Government and the Sultan of Zanzibar concerning the Coastal Strip. Pacta sunt servanda is a doctrine that obliges states to fulfil in good faith their commitments under international law.[55] Secondly, matters of Christian personal laws are sufficiently addressed in the Kenyan Statues which bear their origin from the English Common Law.[56] 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

This 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.[57] The Court sits in Nairobi at the Supreme Court building and is deemed to be properly constituted for purposes of its proceedings when five judges are sitting.

The Supreme Court has:

Where a matter involves the interpretation or application of the constitution: The Supreme Court will only entertain an appeal that raises ‘cogent issues of constitutional controversy.’[59] The test is whether the appeal raises a question of constitutional interpretation or application and whether such a constitutional issue has been canvassed in the superior Courts leading to the Supreme Court. In Peter Oduor Ngoge v Hon. Francis Ole Kaparo [60]a two-judge bench of theSupreme Court ruled:

In the interpretation of any law touching on the Supreme Court’s appellate jurisdiction, the guiding principle is to be that the chain of Courts in the constitutional set-up, running up to the Court of Appeal, have the professional competence, and proper safety designs, to resolve all matters turning on the technical complexity of the law; and only cardinal issues of law or of jurisprudential moment, will deserve the further input of the Supreme Court.

As such, the Supreme Court will only admit a case where the issues of contestation revolve around the interpretation or application of the Constitution. In other words, an appellant must be challenging the interpretation or application of the Constitution which the Court of Appeal used to dispose of the matter.[61]

Where a matter of general public importance is involved: The Supreme Court can hear appeals in cases in which the Supreme Court or the Court of Appeal certifies that a matter of general public importance is involved. Although certification can be sought either from the Supreme Court or from the Court of Appeal, the Supreme Court has held that it is a good practice to originate the application in the Court of Appeal. Nonetheless, certification by the Court of Appeal may be reviewed by the Supreme Court and either affirmed, varied or overturned.[62] In Sum Model Industries Ltd v Industrial & Commercial Development Corporation,[63] the Supreme Court held:

This being an application for leave to appeal against a decision of the Court of Appeal, it would be good practice to originate the application in the Court of Appeal which would be better placed to certify whether a matter of general public importance is involved. It is the Court of Appeal which has all along been seized of the matter on appeal before it. That Court has had the advantage of assessing the facts and legal arguments placed and advanced before it by the parties.

Accordingly, that Court should ideally be afforded the first opportunity to express an opinion as to whether an appeal should lie to the Supreme Court or not. If the applicant should be dissatisfied with the Court of Appeal's decisions in this regard, it is at liberty to seek a review of that decision by this Court as provided for by Article 163(5) of the Constitution.

In Hermanus Phillipus Steyn v. Giovanni Gnecchi-Ruscone[64] the Supreme Court outlined the governing principles applicable when determining whether a matter is of general public importance as follows:

The Supreme Court’s jurisdiction to give Advisory Opinions: The Supreme Court may give advisory opinions in respect of matters concerning county government at the request of the national government, a state organ or any county government.[65] Therefore, an advisory opinion will only be given where:

The advisory opinion jurisdiction is purely discretional i.e. at the instance of the Supreme Court. The Supreme Court set out the guidelines for exercise of advisory jurisdictionIn the Matter of Interim Independent Electoral Commission.[66] Of pertinence is that just like other decisions, an advisory opinion is binding on those who bring the issue before the Court and upon lower courts. According to the Supreme Court:

Where a government or State organ makes a request for an Opinion, it is to be supposed that such organ would abide by that Opinion; the Opinion is sought to clarify a doubt, and to enable it to act in accordance with the law. If the applicant were not to be bound in this way, then it would be seeking an Opinion merely in the hope that the Court would endorse its position and, otherwise, the applicant would consider itself free to disregard the Opinion. This is not fair, and cannot be right. While an Advisory Opinion may not be capable of enforcement in the same way as ordinary decisions of the Courts (in the shape of Rulings, Judgments, Decrees or Orders), it must be treated as an authoritative statement of the law. The Opinion must guide the conduct of not just the organ(s) that sought it, but all governmental or public action thereafter. To hold otherwise, would be to reduce Article 163(6) of the Constitution to an “idle provision”, of little juridical value. The binding nature of Advisory Opinions is consistent with the values of the Constitution, particularly the rule of law.[67]

The Supreme Court has issued several advisory opinions so far. A few notable ones include In the Matter of the National Land Commission,[68] In re Speaker, County Assembly of Embu[69] and In the Matter of the Principle of Gender Representation in the National Assembly and the Senate.[70] All courts are bound by the Supreme Court's decisions. However, the Supreme Court is not bound by its previous decisions.[71] 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.

4.2. The Court of Appeal

The Court of Appeal of Kenya is established under Article 164 of the constitution of Kenya and consists of several judges, being not fewer than twelve. The Court of Appeal handles appeals arising from the decisions of the High Court as well as any other court or Tribunal as provided for in Law.[72] The court comprises a maximum of 30 Judges. The Judges of the Court of Appeal elect a President from among themselves. The Court of Appeal has been decentralized and currently has a total of six registries, namely Nairobi, Mombasa, Nyeri, Kisumu, Nakuru and Eldoret. It has only appellate jurisdiction, in both civil and criminal cases. The decisions of the Court of Appeal are binding on all courts lower in the hierarchy, including the High Court, according to the doctrine of stare decisis.

The Hierarchy of Appeals: Appeals from the subordinate courts 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; and such direction may also be given by the Chief Justice before the hearing of an appeal or at any time before the judgment is received.[73]

Filing of Appeals: An appeal is a judicial examination by a higher court of the decision of a lower court. Appeals to the High Court are filed by lodging a memorandum of appeal signed in the same manner as a pleading.[74] 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.[75] New grounds of appeal can only be introduced with the leave of the court. The court will apply its discretionary powers to deny or accept the new ground(s) of appeal.

The detailed instructions on how to prepare a memorandum of appeal are set out in the Court of Appeal Practice Directions, 2015 and in order 42 of the Civil Procedure rules. The memorandum of appeal contains the grounds on which judicial examination is invited. For an Appeal to be said to be validly presented, the following requirements must be complied with

How to Prepare a Memorandum of 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, it is possible to apply for extension/enlargement of time to file the appeal.[76] When considering an application for extension of time, the court will pay regard to a number of considerations among them:

Stay of Execution Pending Appeal: An 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.

An application for stay of execution pending appeal is made by way of Notice of Motion under Rule 5(2)(b) of the Court of Appeal Rules, 2010 and Order 42, rule 6 of the Civil Procedure rules. It is important to note that 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.[78] The conditions to be met before stay of execution is granted are as follows:

How the Court Deals with Appeals: The appellate jurisdiction of the Court of Appeal is limited to determination of points of law. Although the Court has power to reappraise evidence and take additional evidence,[80] the Court of Appeal will not normally interfere with a finding of fact by the trial court unless such finding is based on no evidence; or on a misapprehension of the evidence; or the Judge is shown demonstrably to have acted on wrong principle in reaching the finding.[81] As was held in Mercy Kirito Mutegi v Beatrice Nkatha Nyaga & 2 others:[82]

We are nonetheless conscious that our jurisdiction is only limited to determination of points of law and thus, our concern regarding the issues that dealt on facts will be limited to our duty of re- evaluation of the Judge’s conclusions; and if the conclusions are erroneous; that is, not supported by evidence and the law; the matter becomes a point of law.

If on any day fixed for the hearing of an appeal the appellant does not appear, the appeal may be dismissed and any cross-appeal may proceed, unless the Court sees fit to adjourn the hearing. If, on the other hand the appellant appears and the respondent fails to appear, the appeal proceeds in the absence of the respondent and any cross-appeal may be dismissed, unless the Court sees fit to adjourn the hearing.[83] The foregoing notwithstanding, a party whose application, appeal or cross appeal is dismissed can apply to have the same reinstated. When considering an application to reinstate an appeal that was dismissed for non-attendance, the main issue for determination is whether the applicant has given satisfactory explanation for non-attendance.[84] What constitutes satisfactory explanation/cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances of each case.[85]

Procedure at the Hearing of an Appeal: At the hearing of an application or appeal, the Court hears the first applicant or appellant, then the respondent and then the applicant or appellant in reply.[86] At the hearing of an appeal where notice of cross-appeal has been given, the Court will ordinarily hear the appellant first on the appeal, then the respondent on the appeal and on the cross-appeal, then the appellant in reply on the appeal and on the cross-appeal and finally the respondent in reply on the cross-appeal.[87]

Powers of the Appellate Court: Upon hearing an appeal, the appellate Court may exercise the following powers:[88]

An option will be elected from the abovementioned depending on the grounds raised in the Appeal. The Court will opt to exercise its power to determine the case finally where the evidence on the record is sufficient to enable the Appellate Court to pronounce Judgment and to finally determine the case. This is the most common option available to the court of appeal. In certain cases, the record of appeal may not be sufficient to enable the Court to pronounce Judgment or to enable it finally to determine the Appeal. In which case they will opt to remand the case.

Power to Remand the Case: To remand means to send back. The general rule is that the court should, as much 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. The Court will remand a case where:

· Where the trial court disposed of the case on preliminary point without hearing and recording evidence on other issues. 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. Examples of preliminary points of law are the doctrine of res judicata and statutory limitation of time.

· Where the Appellate Court disagrees with the trial court. In such a case the Appellate court will set aside the judgment and decree of the trial court and remand the case to the trial court for re-hearing and determination. The Appellate Court may also direct what issues shall be tried in the case so remanded.

The Court’s Power to Frame the Issues and Refer Them for Trial: 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.

The Power to Take Additional Evidence or Require Such Evidence to be Taken: The Court has power to take additional evidence, or to direct that additional evidence be taken by a trial court.[89] This power to receive additional evidence is discretionary, meaning a party will need to give the Court ‘sufficient reason’ to allow the application to take additional evidence. The Court of Appeal rules do not set out what constitutes ‘sufficient reason.’ Nonetheless, it is now settled that the appellate Court will not admit additional evidence unless:

The Power to Order a New Trial: This power is intertwined with the power of review. An order for retrial may be made after consideration of the particular facts and circumstances of each case but will only be made where the interests of justice require it and where it is not likely to cause an injustice to an accused person.[91] The Court of Appeal in John Kariuki Gikonyo V Republic[92]quoted with approval the case Fatehali Manji V Republic[93]which held that:

In general a retrial will be ordered only when the original trial was illegal or defective; it will not be ordered where the conviction is set aside because of insufficiency of evidence or for the purpose of enabling the prosecution to fill up gaps in its evidence at the first trial; even where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame, it does not necessarily follow that a retrial should be ordered; each case must depend on its own facts and circumstances and an order for retrial should only be made where the interests of justice require it.

Among the factors to be considered in determining whether or not to order a new trial are: (a) the seriousness and prevalence of the offence; (b) the expense and length of time involved in a fresh hearing; (c) the ordeal suffered by an accused person on trial; (d) the length of time that will have elapsed between the offence and the new trial; (e) the fact, if it is so, that evidence which tended to support the defence on the first trial would be available at the new trial; (f) the strength of the case presented by the prosecution.[94]

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 is codified in the High Court (Organization and Administration) Act. The court has a principal judge 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 39 High Court stations in the country.

Composition: Ordinarily, the High Court is duly constituted by one Judge sitting alone. However, any matter certified as raising a substantial question of law is heard by an uneven number of judges, being not less than three, assigned by the chief justice.[95] Appointment of Judges: Judges of the High Court 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:


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 legislation 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:

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 Elections 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 an election , the petitioner must prove that the election was not conducted in accordance with the principles laid down in the Constitution or any relevant written law.[96] There are various categories of election offences, including offences relating to voting, offences by members and staff of the IEBC, offences relating to the register of voters and voters’ cards, offences relating to multiple registration as a voter, offences relating to the use of technology in elections, offences relating to campaign expenditure, offences relating to unlawful use of public resources and breach of the Electoral Code of Conduct.[97]

In the less than 10 years of the new constitutional regime, Kenyan courts have been called upon to hear and determine a myriad of electoral disputes and a rich body of precedence has quickly emerged.A few landmark cases include Ferdinard Ndung'u Waititu v Independent Electoral & Boundaries Commission (IEBC) & 8 others[98]where it was held that an election is the ultimate expression of the sovereignity of the people; Cyprian Awiti & another v Independent Electoral and Boundaries Commission & 2 others[99]where the Supreme Court underscored the importance of a scrutiny report and Harun Meitamei Lempaka v Lemanken Aramat & 2 others[100]where it was held that the jurisdiction of the Election Court is linked to timelines.

Interpretation of the Constitution: Article 165(3) (d) entrusts the High Court with the mandate of interpreting the constitution. Such interpretation includes the determination of:

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:

Other Powers:

4.4. Courts with Status of the High Court

Article 162 of the Constitution empowered Parliament to establish Courts with the status of the High Court to hear and determine disputes relating to employment and labour relations and environment and land. Parliament was also charged with the role of determining the jurisdiction and functions of the aforementioned courts. To give effect to the Constitution, Parliament enacted the Environment and Land Court Act[102] (ELC Act) and the Employment and Labour Relations Court Act[103] (ELRC Act). Of pertinence is that Article 165(5) precludes the High Court from entertaining matters reserved to the ELC and ELRC. In the same token, it is now settled that the ELC and ELRC cannot hear matters reserved for the jurisdiction of the High Court.

The Supreme Court in Republic v Karisa Chengo & 2 others[104] held thus:

Article 162(1) categorises the ELC and ELRC among the superior Courts and it may be inferred, then, that the drafters of the Constitution intended to delineate the roles of ELC and ELRC, for the purpose of achieving specialization, and conferring equality of the status of the High Court and the new category of Courts. Concurring with this view, the learned Judges of the Court of Appeal in the present matter observed that both the specialised Courts are of “equal rank and none has the jurisdiction to superintend, supervise, direct, shepherd and/or review the mistake, real or perceived, of the other”. Thus, a decision of the ELC or the ELRC cannot be the subject of appeal to the High Court; and none of these Courts is subject to supervision or direction from another.

4.5. Employment and Labour Relations Court

This is a superior court of record with the status of the High Court that exercises jurisdiction throughout Kenya. It has exclusive original and appellate jurisdiction to hear and determine disputes relating to employment and labour relations. It is composed of a Principal Judge and such number of judges that may be determined and recruited by the Judicial Service Commission.[105] Just like the High Court, this Court has jurisdiction to make, among others, prohibitory orders, orders of specific performance and an award of damages.[106]

4.6. Environment and Land Court

This superior court exercises jurisdiction throughout Kenya. It has exclusive original and appellate jurisdiction to hear and determine disputes relating to the environment and the use and occupation of, and title to, land. It consists of a Presiding Judge and such number of Judges as may be determined by the Judicial Service Commission from time to time. Just like the High Court, this Court has the power to make any order and grant any relief as it deems fit and just.

4.7. Removal of a Superior Court Judge from Office

Generally, all judges enjoy security of tenure during their term of office. Article 168 of the Constitution provides the mechanism for removal from office of a judge of a superior court. The removal of a judge of a superior court is only possible on the grounds set out in Article 168(1). These grounds include inability to perform the functions of office due to mental or physical incapacity, breach of the code of conduct for judges of superior courts and gross misconduct or misbehavior. The removal process can only be commenced by the Judicial Service Commission (JSC) either on its own motion or acting on a petition by any person that satisfactorily 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 then appoints 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.

So far, a tidy number of judges have been subject to the tribunal process and either exonerated or removed. For example the first Deputy Chief Justice in the new constitutional era was found to have engaged in gross misconduct when ‘She went away and came back with a pistol and brandished it at the unfortunate woman who was just performing her duty.’[107] Former Justice Joseph Mutava was found guilty of having caused a case in which he had an interest to be assigned to him, and having tried to influence another judge in his decision. These amounted to breach of the Code of Practice and gross misconduct. After sitting for two months and calling 14 witnesses, the tribunal investigating former Supreme Court judge Philip Tunoi was unable to render a verdict since the judge retired during the pendency of proceedings, meaning he was no longer a judicial officer who could be retained or removed.[108] More recently, the tribunal investigating Supreme Court judge J.B Ojwang declared him innocent of any wrongdoing.[109]

4.8. Subordinate Courts

Article 169(1) of the Constitution provides that subordinate courts include the Magistrate’s courts, the Kadhis’ courts, the Courts Martial, and tribunals established by the dint of a statute. The magistrate’s courts are, in order of hierarchy, the Chief Magistrate’s, 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. The jurisdiction of magistrates’ courts is determined on a territorial and pecuniary basis. The jurisdiction and functions of the subordinate courts are set in statute.[110]

4.8.1. Magistrates Courts

Magistrates Courts form part of the subordinate court structure per Article 169(1) of the Constitution. A magistrate's court is subordinate to the High Court and is duly constituted when presided over by a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate.[111] These courts have criminal jurisdiction and powers in proceedings of a criminal nature as may be conferred by the Criminal Procedure Code (Cap. 75 of the Laws of Kenya) or any other written law. The magistrates’ courts have and exercise jurisdiction and powers in proceedings of a civil nature where the value of the subject matter in dispute does not exceed:[112]

Noteworthy is that magistrates’ courts have jurisdiction to hear and determine claims relating to violation of the freedom from torture and the freedom from slavery.[113] Further, Magistrates courts have a limited jurisdiction to hear and determine claims in employment, labour relations and land and environment.

4.8.2. Kadhis’ Courts

Article 169 of the Constitution lists Kadhis’ Courts as one of the subordinate courts. Noteworthy is that the Kadhis’ courts in Kenya predate the 2010 Constitution. The jurisdiction of this court is limited to the determination of questions of Muslim Law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim Religion and submit to the jurisdiction of the Kadhis’ courts.[114] Apart from the constitution there are statutes that govern the operation of the Kadhis Courts. These include the Kadhis Courts Act, Cap.11 of the laws of Kenya, The Succession Act, Cap 160, The Civil Procedure Act and Rules, Cap. 21, The Children’s Act No. 8 of 2001 and the Marriage Act, No. 4 of 2014. The Kadhis’ Courts are composed of a Chief Kadhi and no fewer than three other kadhis.[115] The law and rules of evidence applicable in a Kadhi’s Court are those applicable under Muslim law.[116]

It is important to note that a large majority of Kenyans practice Christianity and so the move to officially recognize Kadhis Courts as part of Kenya’s judicial system sparked heated debate and opposition. Opposers argued, inter alia that official recognition of Kadhis’ Courts contradicts Article 8 that provides that there shall be no state religion. It was also argued that financial maintenance of the Kadhi courts from the public resources was unjust and amounts to development of one religion. Nevertheless, Kenyans in 2010 voted for the current constitution that entrenches the Kadhis’ Courts as part of the judicial system.

There has been conflicting jurisprudence on whether the Kadhis Courts have jurisdiction to handle children related cases. For instance the High Court at Mombasa in Amin Mohammed Hassan v Zahra Mohammed Abdulkadir[117] found that the Kadhi’s Court has jurisdiction to handle child related cases, while the High Court at Kisumu in SMH v SAA[118] held that Kadhis’ Courts lack jurisdiction to handle any case related to children. However, a majority of the jurisprudence suggests that the issues of children (e.g. custody and maintenance) may only be properly dealt with by the Children’s Court under the Children Act and not Kadhi’s Courts. Recently in ABMM v SMY & another[119] the High Court at Garissa expressed itself thus: “Therefore in my view it is clear that the drafters of the above provisions of the law never intended the Kadhi’s Court to handle matters relating to custody and maintenance of the children… It is therefore my opinion that the Children’s Act, 2001 relates to all children irrespective of their religious affiliations and or cultural background. It does not distinguish between a child of Muslim parents from any other child for purposes of protection under the law-custody, guardianship and maintenance.”

4.8.3. Courts Martial

The Constitution lists Courts Martial as one of the subordinate courts. This Court tries military personnel who commit certain offences specified in the Kenya Defence Forces Act (KDF Act). A court martial consists of a Judge Advocate, who is the presiding officer; at least five other members, appointed by the Defence Court-martial Administrator, if an officer is being tried; and at not less than three other members in any case.[120]

The KDF Act limits the personal jurisdiction of the courts martial to any person subject to the Act for any offence under the Act. The Act lists a rather broad class of persons who are subject to it.[121] Similar to its jurisdiction over persons, the courts martial has a wide array of service offences over which it exercises jurisdiction. Courts martial have jurisdiction to try civilian offences, provided that they were committed by the aforementioned persons who are subject to the Act.[122] In addition, courts martial also have sentencing powers for civil offences.[123]

4.8.4. The Children’s Court

This Court was established vide Section 73 of the Children Act, Cap 141 of the laws of Kenya. 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.

4.8.5. Tribunals

Tribunals are bodies established by Acts of Parliament to exercise judicial or quasi-judicial functions. They supplement ordinary courts in the administration of justice.[124] There are about 60 tribunals in Kenya.[125] The more prominent tribunals are:

4.9. People in the Judiciary

The Chief Justice and Judges of Superior Courts: The Chief Justice is appointed by the President upon the recommendation of the Judicial Service Commission.[126] Superior Court judges 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 or as a distinguished academic, judicial officer, legal practitioner or experience in another 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) 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.

Registrars: Who are responsible for record keeping and day to day administration of the Courts. Magistrates are appointed by the Judicial Service Commission. Court Clerks are appointed by the Public Service Commission. They receive pleadings, 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.

5. Constitutional Commissions and Independent Offices

It has been argued that constitutional commissions form the ‘fourth arm of government.’[127] The Constitution of Kenya dedicates Chapter 15 to Commissions and Independent Offices.

Article 248 of the new Constitution lists ten Constitutional Commissions and two Independent Offices. [128] This is as against a total of seven commissions under the Old Constitution. The independent offices are the office of the Controller of budget and the office of the 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:

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. The rationale informing the independence of these institutions was succinctly captured by the Supreme Court in the Matter of Interim Independent Electoral Commission[129] as follows:

It is a matter of which we take judicial notice that the real purpose of the “independence clause”, with regard to Commissions and independent offices established under the Constitution, was to provide a safeguard against undue interference with such Commissions or offices, by other persons, or other institutions of government. Such a provision was incorporated in the Constitution as an antidote, in the light of regrettable memories of an all-powerful Presidency….

5.1. Judicial Service Commission

This commission is established via Article 171 of the Constitution of Kenya. The 2010 constitution retains the 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 consists of the following 11 members:

The Chief Registrar of the Judiciary is the Secretary to the Commission. The former president Mwai Kibaki nominated Justice Albasir Visram as 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 activities carried out by the JSC under the new constitution include: Public interviews for the Chief Justice and the Deputy Chief Justice positions in May 2011 and September 2016, recruitment of more judicial officers, establishment of more High Court stations and decentralization of the Court of Appeal.

5.2. Functions of the Judicial Service Commission

6. 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:

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

7. 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:

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.[130]

[1] Professor Ojienda 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); TheDawn 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). Moreover, Prof. Ojienda also published several papers in journals including Sectoral Legal Aid in Kenya; The Case of the Rift Valley Law Society Juvenile Legal Aid Project published in various journals (the Advocate, the Lawyer, and the Newcastle Law Bulleting, The Legal Profession in 2015); Rethinking the Challenges, Opportunities & Threats published in the Law Society of Kenya Journal; Gender Question: Creating Avenues to Promote Women Rights after the Defeat of the Proposed Constitution published in the Moi University Journal; Pitfalls in the Fight Against Corruption in Kenya; Corruption or Inertia? published in Anti-Corruption & Good Governance in East Africa: Laying Foundations for Reform; A Critical Look at the Land Question in the New Constitution published in Nairobi Law Monthly; Sustainability & the Ivory Trade: Whither the African Elephant? in the African Journal of International and Comparative Law, among others as well as articles in the areas of Regional Integration, Environmental Law, Property Law, Legal Aid, Family Law, and Legal training.

[2] Currently, Professor Ojienda is a Council member of the Int’l Bar Association, Commonwealth Lawyers Association, European Lawyers Association, Pan African Lawyers Union (P.A.L.U), the East Africa Law Society, Law Society of Kenya, Member of the Board of American Biographical Society, Member of the Council of Legal Education, Member of the Public Law Institute of Kenya, Kenya Industrial Property Institute, Associate Professor of Public Law at Moi University, and Member of the Judicial Service Commission (JSC).

[3] Ministry of East African Community and Regional Development on 16 March 2020.

[4] Article 7(2), Constitution of Kenya (2010).

[5] Article 4(2), Constitution of Kenya (2010).

[6] Article 131(1), Constitution of Kenya (2010).

[7] Article 6(2), Constitution of Kenya (2010).

[8] For the complete list of the respective functions of the two levels of government see Fourth schedule, Constitution of Kenya (2010).

[9] Cornell LII – Separation of Powers on 16 March 2020. For further discussions on separation of powers in Kenya see Kibet E and Wangeci K, ‘A Perspective on the Doctrine of the Separation of Powers based on the Response to Court Orders in Kenya’ 1(1) Strathmore Law Review, 2016, 220-235 and Kabathi A, ‘SEPARATION OF POWERS UNDER THE 2010 CONSTITUTION: AN ANALYSIS OF THE EMERGING TENSIONS BETWEEN PARLIAMENT AND THE JUDICIARY’ Unpublished LLM thesis, University of Nairobi, Nairobi, 2016.

[10] Article 1(3), Constitution of Kenya (2010).

[11] Ndege P, ‘Colonialism and its legacies in Kenya’ Fulbright – Hays Group project abroad program, Eldoret, 5 July to 6 August 2009, 1.

[12] See Minority Rights Group International on 16 March 2020.

[13] Black’s Law Dictionary, 9th ed.

[14] Article 2(6), Constitution of Kenya (2010).

[15] Kenya Human Rights Commission, Wanjiku’s Journey,2010, 13.

[16] Kenya Human Rights Commission, Wanjiku’s Journey,2010, 13.

[17] Kenya Human Rights Commission, Wanjiku’s Journey,2010, 13.

[18] Committee of Experts on Constitutional Review, Final report of the Committee of Experts on Constitutional Review, 19.

[19] Nunow A, ‘Constitution Making and Legal Reform Process in Kenya’ Indiana.edu, 2004, 7.

[20] Building Bridges to a New Kenyan Nation on 16 March 2020.

[21] The thematic areas are: corruption, ethnic antagonism and competition, devolution, divisive elections, inclusivity, lack of national ethos, safety and security, shared prosperity, responsibilities and rights.

[22] Kahura D, ‘BBI and the Referendum: Another False Start?’ The Elephant, Published 22 August 2019, last visited 16 Match 2020.

[23] See generally Punguza mizigo (Constitution of Kenya Amendment) Bill 2019.

[24] Oxford Business Group on 16 March 2020.

[25] Article 2(1), Constitution of Kenya (2010).

[26] Article 2, Constitution of Kenya (2010).

[27] Article 1(1), Constitution of Kenya (2010).

[28] Article 93(1), Constitution of Kenya (2010).

[29] See Article 94(4), Constitution of Kenya (2010).

[30] Article 123(4), Constitution of Kenya (2010).

[31] Article 123(1), Constitution of Kenya (2010).

[32] Among the various statutes are the Elections Act (Act No. 24 of 2011); Ethics and Anti-Corruption Commission Act (Act No. 22 of 2011) and the Leadership and Integrity Act (Act No. 19 of 2012).

[33] Article 104, Constitution of Kenya (2010).

[34] Article 114, Constitution of Kenya (2010).

[35] Speaker of the Senate & Another v Hon. Attorney General & 3 Others (2013) eKLR.

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

[37] Marbury v Madison (1803), The Supreme Court of the United States.

[38] Ochich, G, ‘The Changing Paradigm of Human Rights Litigation in East Africa’ cited in Reinforcing judicial and legal institutions: Legal institutions (International Commission of Jurists Publication: Nairobi, 2007) 5 at 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.’

[39] Article 171(2), Constitution of Kenya (2010).

[40] Article 160(2), Constitution of Kenya (2010).

[41] Article 160(3), Constitution of Kenya (2010).

[42] Article 160(4), Constitution of Kenya (2010).

[43] Article 160(5), Constitution of Kenya (2010).

[44] Laibuta A.,”A Constitutional and Institutional Reform: What Role in Addressing Impunity” Addressing Impunity Options for Justice in Kenya: Mechanisms, Issues and Debates, 2009, pp.229 – 287 at 247.

[45] Article 173(4), Constitution of Kenya (2010).

[46] Article 173(2), Constitution of Kenya (2010).

[47] Article 173, Constitution of Kenya (2010).

[48] See Article 159(2(d), Constitution of Kenya (2010).

[49] Article 166(3), Constitution of Kenya (2010).

[50] The Judicial Service Act (Act No. 1 of 2011) which, inter alia, makes provisions for the structure and appointment of the members of the Judicial Service Commission, has been enacted.

[51] Article 168, Constitution of Kenya (2010).

[52] Gicheru E, ‘Independence of the Judiciary: Accountability and Contempt of Court’ 1(1) Kenya Law Review, 2007.

[53] Her Majesty’s Stationery Office, Agreement between the Government of the United Kingdom, His Highness the Sultan of Zanzibar, the Government of Kenya and the Government of Zanzibar, 4.

[54] Her Majesty’s Stationery Office, Agreement between the Government of the United Kingdom, His Highness the Sultan of Zanzibar, the Government of Kenya and the Government of Zanzibar, 4.

[55] Lukashuk I.I. The Principle of Pacta Sunt Servanda and the Nature of Obligation under International Law83(3) The American Journal of International Law, 1989, 513.

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

[57] Article 163(1), Constitution of Kenya (2010).

[58] Article 163(4), Constitution of Kenya (2010).

[59] Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others(2014) eKLR at Para 52.

[60] (2012) eKLR.

[61] Lawrence Nduttu & 6000 others v Kenya Breweries Ltd & another (2012) eKLR.

[62] Article 163(5), Constitution of Kenya (2010).

[63] (2011) eKLR.

[64] (2013) eKLR.

[65] Article 163(6), Constitution of Kenya (2010).

[66] (2011) eKLR.

[67] In the Matter of Interim Independent Electoral Commission (2011) eKLR.

[68] (2015) eKLR.

[69] (2018) eKLR.

[70] (2012) eKLR.

[71] Article 163(7), Constitution of Kenya (2010).

[72] Article 164(3), Constitution of Kenya (2010).

[73] Section 79(c), Civil Procedure Act (Cap 21 of the Laws of Kenya).

[74] Order 42 rule 1, Civil Procedure Rules (2010).

[75] Order 42 rule 4, Civil Procedure Rules (2010).

[76] Rule 4, Court of Appeal Rules (2010).

[77] Imperial Bank Limited (In Receivership) & another v Alnashir Popat & 18 others (2018) eKLR.

[78] Order 42 rule 6(4), Civil Procedure Rules (2010).

[79] Order 42, rule 6(2), Civil Procedure Rules (2010).

[80] Rule 29, Court of Appeal Rules (2010). See also Selle v. Associated Motor Boats Company Limited (1968) EA 123 as quoted in Timmamy Issa Abdalla v. Swaleh Salim Imu and 3 others (2014) eKLR.

[81] Mwangi v Wambugu [1984] KLR 453. See also Thiaka v. Republic [2006] 2 EA 326.

[82] (2013) eKLR.

[83] See Rules 56 and 102, Court of Appeal Rules (2010).

[84] Kasturi Limited v Nyeri Wholesalers Ltd (2014) eKLR. See also Rules 56(3) and 102(2), Court of Appeal rules (2010).

[85] Wilson Cheboi Yego v Samuel Kipsang Cheboi (2019) eKLR.

[86] Section 27(1), Court of Appeal Rules (2010).

[87] Section 2792), Court of Appeal Rules (2010).

[88] Section 78, Civil Procedure Act (Cap 21 of the Laws of Kenya).

[89] Rule 29(1)(b), Court of Appeal rules (2010).

[90] Joginder Auto Service Ltd v Mohammed Shaffique & another (2001) eKLR. See also Wanje v Saikwa (1984) KLR 275 and The Administrator, HH The Aga Khan Platinum Jubilee Hospital v Munyambu (1985) KLR 127.

[91] Ahmedi Ali Dharamsi Sumar V Republic(1964) E.A. 481as quoted inJohn Kariuki Gikonyo v Republic(2019) eKLR.

[92] (2019) eKLR.

[93] (1966) E.A. 343.

[94] Reid vs R - (1978) 27 WIR 254as quoted inJohn Njenga Kamau v Republic(2018) eKLR.

[95] Article 165(4), Constitution of Kenya (2010).

[96] Section 83 Elections Act (Act No. 24 of 2011).

[97] The Kenyan Section of the International Commission of Jurists, Compendium of 2017 election petitions, 2019, 371. See Election Offences Act (Act No. 37 of 2016).

[98] (2013) eKLR.

[99] (2019) eKLR.

[100] (2014) eKLR.

[101] Article 165(3) (d), Constitution of Kenya (2010).

[102] (Act No. 19 of 2011).

[103] (Act No. 20 of 2011).

[104] (2017) eKLR.

[105] Section 5, Employment and Labour Relations Court Act (Act No. 20 of 2011).

[106] Section 12(3), Employment and Labour Relations Court Act (Act No. 20 of 2011).

[107] See ‘The Nancy Baraza Verdict, Part I: Justice Augostino Ramadhani’s Statement at the KICC’, (August 12, 2012), accessed 16 March 2020.

[108] Muthoni K, ‘Judge Philip Tunoi tribunal will not make verdict in report’ Standard Digital, Published 28 June 2016, last visited 16 March 2020.

[109] See Odidi J and PSCU, ‘Tribunal declares Justice Jackton Ojwang innocent’ Daily Nation, 4 August 2019on 8 August 2019 and Muthoni K, ‘Why tribunal cleared ojwang and indicted the Judicial Service Commission’ Standard Digital, 6 August 2019, last accessed on 16 March 2020.

[110] Article 169(2), Constitution of Kenya (2010).

[111] Section 5, Magistrates’ Court Act (Act No. 26 of 2015).

[112] Section 7, Magistrates’ Court Act (Act No. 26 of 2015).

[113] See Section 8, Magistrates’ Court Act (Act No. 26 of 2015).

[114] See Article 170(5), Constitution of Kenya (2010).

[115] Article 170(1), Constitution of Kenya (2010).

[116] Section 6, Kadhis Court Act (Cap 11 of the Laws of Kenya).

[117] (2009) eKLR.

[118] (2013) eKLR.

[119] (2019) eKLR.

[120] Section 160 (1), Kenya Defence Forces Act (Act No. 25 of 2012).

[121] For a full list of persons subject to the KDF Act see Section 4, KDF Act (Act No. 25 of 2012).

[122] Section 133 (1), KDF Act (Act No. 25 of 2012).

[123] Section 133, KDF Act (Act No. 25 of 2012).

[124] See the website of the Judiciary, last accessedon 16 March 2020.

[125] Judiciary of Kenya, State of the Judiciary and the Administration of Justice, 2019, 66.

[126] Article 166(1), Constitution of Kenya (2010).

[127] See for example Ben Sihanya, ‘Constitutional implementation in Kenya, 2010-2015: Challenges and prospects’ FES Kenya Occassional Paper, No. 5 (2011) at p38 [Accessed: 12 July 2014] and See Lillian Aluanga-Delvaux, ‘It’s Mixed Reactions to Proposals to Cut Down on Commissioners’ Standard Digital 16 March 2014 [Accessed: 17 July 2014].

[128] Chapter 15, Constitution of Kenya (2010).

[129] (2011) eKLR.