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Class by Professor Takeshi Tsunoda.
Kenya’s system of courts is structured, in descending order, basically as follows:
1. Supreme Court
2. Court of Appeal
3. High Court (Including employment and labor court and the environment and land court)
4. Subordinate courts (Magistrates’ courts, Khadi courts and Courts martial).
The supreme court is at the apex in the hierarchy of the Kenyan court system and hence its decisions are final and binding.
The Supreme Court comprises seven (7) judges i.e.
1. The Chief Justice who is the President of the Court;
2. The Deputy Chief Justice who is the Vice-President of the Court;
3. And 5 other Judges
The Chief Justice and the Deputy Chief Justice are appointed by the President but only in accordance with the recommendation of the Judicial Service Commission, and subject to the approval of the National Assembly. The jurisdiction of the Supreme Court is well articulated under the Constitution of Kenya 2010 and specifically Article 163(3). The Supreme Court shall have—
(a) exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of President arising under Article 140;
(b) subject to clause (4) and (5), appellate jurisdiction to hear and determine appeals from—
(i) the Court of Appeal; and
(ii) any other court or tribunal as prescribed by national legislation.”
Despite having appellate jurisdiction, the jurisdiction is not absolute; and its only invoked if the case involves a right if the matter involves the interpretation or application of the Constitution; or a matter where the Court of Appeal or the Supreme Court suo motu has certified that the matter is one of public importance.
Further, Article 163(6), the Supreme Court has additional jurisdiction on advisory opinions. “163 (6) The Supreme Court may give an advisory opinion at the request of the national government, any State organ, or any county government with respect to any matter concerning county government.”
In Yusuf Gitau Abdalla v. The Building Centre (K) Ltd & 4 others, Petition No. 27 of 2014, the duty judge emphasized on the the importance of judicial time “Finally, this matter has brought to the fore the glaring lacuna in the Supreme Court Act and Rules. Judicial time is very precious and should not be wasted by a judge or judges of the Court sitting at the preliminary stage to determine whether a matter has met the prima facie jurisdiction threshold to be admitted to the Supreme Court … The wheels of justice at the Supreme Court should not be clogged by matters that should not have been admitted in the first place.”
The Court of Appeal is the 2nd highest court in the Kenyan court system, after the Supreme court and is mostly refereed to as the “Appellate court.” In terms of composition, Article 164 (2) of the Constitution provides that; “There shall be a president of the Court of Appeal who shall be elected by the judges of the Court of Appeal from among themselves.”
The Constitution of Kenya, under Article 164, provides that the number of Judges of Appeal shall not be less than 12 but this number may be enlarged by an Act of Parliament. However, the Judicature Act stipulates that the maximum number of Court of Appeal judges to be fourteen (14) in number.
The jurisdiction of the Court of Appeal is mainly appellate in nature; it has jurisdictions to hear appeals from the High Court and any other court or tribunal as prescribed by an Act of Parliament.
The Appellate Jurisdiction Act, Cap. 9, under section 3(1) & (2) further provides that the Court of Appeal has jurisdiction to hear and determine appeals from the High Court in cases in which appeals lie to the Court of Appeal under law and in addition to any other power, authority and jurisdiction conferred by the Act, the power, authority and jurisdiction.
The Constitution of Kenya, under Article 165 empowers the High Court with unlimited original jurisdiction in criminal and civil matters. In essence, the court can adjudicate on any matter except those falling under the exclusive jurisdiction of the Supreme Court under the Constitution or falling within the jurisdiction of the courts contemplated in Article 162 (2) i.e. the employment and labour relations court and the environment and land court which have the same status as the high court.
The High court also enjoys appellate jurisdiction on matters of both facts and law from decisions of subordinate courts made in exercise of their jurisdiction. Article 165(6) of the Constitution further grants the High Court with 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.
Matters of the high court are presided over by judges appointed by the President with the recommendation of the Judicial Service Commission.
The subordinate court are essentially a ‘court of first instance’ as most matters find their inception in the lower courts. The subordinate courts are established under Article 169 of the constitution and are presided over by Magistrates gazetted by the Chief Justice.
The hierarchy of these courts, in descending order, are: Chief Magistrate, Senior Principal Magistrate, Principal Magistrate, Senior Resident Magistrate, Resident Magistrate and District Magistrate. Subordinate Courts also include Courts-Martial and Kadhi Courts. All matters from subordinate courts can be appealed to the high court.
4(a) Court Martial
This is a subordinate court established under the Armed Forces Act, Cap. 199. The court’s jurisdiction is limited to matters of discipline of members of Kenya’s armed forces. A court martial is not permanent in nature and is only constituted to deal with a specific matter such as insubordination, cowardice, fraud, theft, aiding an enemy and neglect of duty.
4(b) Kadhi Courts
This is also another special subordinate court. Article 170(5) of the Constitution stipulates that the jurisdiction of a Kadhis’ 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 Kadhi’s courts.
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