Structure and jurisdiction of courts in Kenya notes

Structure and Jurisdiction of Courts in Kenya

  • Composition and jurisdiction of courts
  • Hierarchy of Kenyan courts
  • Composition and jurisdiction of administrative tribunals

STRUCTURE OF COURTS OF KENYA

Kenya has a court structure which operates at different levels. Each level has power to deal with certain cases which is described as jurisdiction of the court.

Hierarchy of courts

  1. Superior courts
  2. Subordinate courts
  3. Administrative tribunals

Superior courts

These are regarded as superior courts of records since they make law. They are established by the constitution, they are

  1. a) The Supreme Court
  2. b) The Court of Appeal
  3. c) The High Court

The Supreme Court

Composition

Consist of;

  1. The Chief Justice is the president of the court.
  2. Deputy Chief Justice,
  • Five other judges

Functions

  1. Exclusive original jurisdiction.

To hear and determine disputes relating to the elections to the office of the president

  1. Appellate jurisdiction

To determine appeals from court of appeal or any other court or tribunal on the following matters

  1. Interpretation of constitution
  2. Application of constitution

iii.       Any other case involving the general public

  1. Review

To review any certification by Court of Appeal which may be affirmed, varied or overturned?

  1. Advisory jurisdiction

To advise on request national government, county .or any state organ with respect to any matter concerning county government

  1. Bind other courts

All courts are bound by decision of Supreme Court))

  1. Make rules

To make rules for the exercise of its jurisdiction

  1. The Parliament may make further provisions for its operation

The Court of Appeal

Composition Consist of;

Not less than twelve judges, one of them being the President of the court elected by Court of Appeal judges from among themselves

Function

The court of Appeal determines appeals from High Court and any other tribunal.

The High Court

Composition

Consist of a number of judges as prescribed by Parliament .One judge being the Principal judge of e court elected by other judges.

Functions

  1. Unlimited original jurisdiction both in criminal and civil cases
  2. To determine whether a fundamental right or freedom is violated, denied or infringed.
  3. Appellate jurisdiction on tribunal decision on removal of a person from the office
  4. Interpretation of the constitution on determination of inconsistency of law. Excessive powers of state organ.
  5. Supervisory jurisdiction over subordinate court or any person or body exercising judicial or quasi judicial.

The High court exercises supervisory jurisdiction in the following ways;

  1. Writ of Habeas corpus. means” have the body”

This is where a person has been arrested kept in cells or confined without lawful justification. He or member of the family may apply   to the High court for His release .The High will do so by issuing a writ of habeas corpus .The person will be released and be charged for offence committed by him .He will be compensated by the state if it is proved he was detained illegally .This is because the constitution guarantees everyone right to liberty.

  1. Certiorari This term means ” to be informed” It is an order by high court to an inferior court or anybody exercising judicial functions to have the records of proceedings submitted to High court in to ensure impartial trial excess of jurisdiction or error in law.
  • Mandamus, This means,” we command” It is an order to any authority carrying out duty imposed by law to compel him to exercise his duty as required by law. This applies to duties, not powers.
  1. Prohibition; this is an order issued to an inferior court to prevent it to hear a certain case which is not required to hear.
  2. Enforcement of fundamental rights and freedoms of individuals by issue of writs and orders and directions,
  3. Admiralty jurisdiction to hear cases arising from high seas, rivers, navigable waters etc.

Appointment of Chief Justice\ judges

Judges are appointed on permanent basis. They retire at age of 70yrs.They are appointed by the President on advice of Judicial Service Commission. Chief Justice is appointed subject to recommendation by National Assembly

Qualifications

For a person to be appointed as a judge he must posses the following qualifications,

  • He has been a judge of unlimited jurisdiction both in civil and criminal cases in some pat of Common wealth country.
  • He is an advocate of Kenya for seven yrs standing
  • He has held such qualification necessary for admission as an advocate for not less than seven years
  • Have high moral character, integrity. and impartiality

Tenure of office      

Judges retire at age seventy years but may elect to retire upon attaining sixty five years.

The Chief Justice may hold the office for ten years or until retirement, He and other judges may resign by notice in writing.

Removal from office

A judge of a superior court may be removed under the following grounds;

  • Inability to perform the functions of the office due to mental or physical incapacity
  • A breach of code of conduct prescribed by Act of Parliament
  • Bankruptcy
  • Incompetence
  • Gross misconduct

 

SUBORDINATE COURTS

Resident Magistrate courts

It is established by sect 3 of magistrate Act Cap10.Itis preside over by a magistrate .It has jurisdiction throughout the country. It is subordinate to High court. Magistrate are appointed by Judicial Service Commission

Functions

  1. Original jurisdiction. Hears cases both civil and criminal all over the country
  2. Criminal jurisdiction

The magistrates have the following powers restricted by the type of the crime;

            Chief, Senior and principal magistrate.
            Sentence    14yrs max ,fine ksh.20000,   corporal punishment 24strokes
          Resident                 7yrs          fine ksh 20000,           “                          24strokes
  1. Civil jurisdiction
        Chief
        Senior                              fine ksh50000
       Principal 
      Chief magistrate                 fines ksh 25000
  1. d) Appellate jurisdiction; ‘This is quite limited. Cases from third class district are heard
  2. e) Jurisdiction In customary law; It has unlimited jurisdiction on customary law matters

THE COURT MARTIAL

This court is established by Parliament which derives its power from constitution thru Armed forces Act. It is a military court formed from time to time when need arises. The court is presided over by a the General chief of Staff or the Commander

Composition

It consists of a Presiding Officer and at least two other members. When an officer is being tried for a capital offence it may consist of Presiding officer and not less than two other members.

Functions

Its jurisdiction is wholly disciplinary to ensure discipline in and forces. It tries such cases as cowardice .neglect of duty, aiding the enemy. Appeals lies to High court on constitutional matters.

KADHIS COURT

Is established by Kadhi Court (Act cap 11) based on provisions of sect170 of the Constitution.

Composition; Presided over by a Chief Kadhi or a Kadhi.

They are appointed by the Judicial Service                                                                                                                                                                                                                                            Commission .A Kadhi should have the following qualifications;

1)        Profess Muslim religion

2)        Possess knowledge of Muslim law.

Functions

Determines matters in question of Muslim, personal status     , Divorce, Inheritance

NB; both parties must profess Muslim religion.

MAGISTRATE COURT

Established by sect 8 .of Kenya Magistrate Court Act 1967.are established in counties.  They are of; 1st class 2nd class and 3rd class

Functions

  1. Civil jurisdiction

The powers of magistrate are governed by the type of offence and amount involved i.e.

1st class              ksh 10000
2nd and 3rd class     ksh5000

 

  1. Criminal

The maximum jail term fine and corporal punishment are as follows;

             Court            sentence                  fine            corporal punishment
              1st                       7yr                  ksh20000             24 strokes
             2nd class             2yrs                ksh10000              12,,
           3rd class               12                    ksh 5000                 6,,

3, Appellate

This is quite limited exercised by 1st class only from 3rdclass.

  1. Customary law

It has unlimited jurisdiction on customary matters

  1. enforcement of provisions

The 3rd class is empowered by order of chief justice to deal with any offence arising under the following provisions’;

  1. Vagrancy act
  2. Prisons act
  3. Public Health act
  4. Traffic act
  5. Animal diseases act
  6. Betting lotteries and gaming act
  7. African liquor Act

 

Administrative tribunals

These are special court with rights and duties established by parliament .they handle cases which cannot be heard by other courts. They include;

Industrial court; the Industrial court was established by Trade dispute Act .1964.I t consist of a judge and four other members appointed by the minister of labor. The four members are to represent the employer and the employee. They are appointed for a term of three years. One member is appointed as deputy to the judge .The judge is appointed for four years. They are all legible for reappointment. The judge must have the qualification of a high court judge. He is appointed by the president with advise of Judicial service Commission.

 

Functions

The function of this court is to decide issues concerning trade disputes which the minister may with the consent of the parties involved refer to a trade dispute when it arises. The dispute may be referred o the court by the parties concerned .this court rests upon the principal of voluntary submission. It cannot force its powers upon unwilling parties. The decision becomes h part of contract of employment. The court is empowered to require the employer to observe the recognized terms and conditions contained in the judgment..

Rent tribunals

Rent tribunals were established by the Rent Restriction (Amendment Act1966).    It is established by the minister for housing .It consists of a chairman, deputy or advocate of high court.  The judge   and the member make the decision before them on basis of majority they must apply the principles of law.

Function

The main function of this court is to determine the rents for certain statutory unfurnished houses .They inspect the house to evaluate the standard of rent payable.

Licensing boards; these are responsible of issuing or permitting some people or organizations to perform some function includes.

  1. The Liquor licensing Board established under the liquor Licensing Act
  2. The Trade licensing board established under trade Licensing Act
  3. The Transport licensing board established under the Traffic Act.

Advantages of tribunals

  1. Quick in making decisions
  2. They are less costly compared to other court
  3. Matters are handled by experts in various fields
  4. They are held in private so most cases are not made public
  5. Saves time

Disadvantages

  1. The court sometimes is not impartial
  2. Since cases are heard in private the parties may influence the decision making
  3. They make illogical decisions
  4. Sometimes parties are not allowed to be represented by a lawyer.

Review questions

  1. Illustrate by a diagram the hierarchy of Kenya courts
  2. Explain the composition and functions of the court of appeal
  3. Explain five functions of High court
  4. The high court is responsible for protecting the fundamental rights and freedoms of individuals. Explain.
  5. Discuss the jurisdiction of resident magistrate court
  6. Explain the advantages and disadvantages of administrative tribunals

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