Friday 5 January 2018

The Court Structure and Jurisdiction in Kenya

Firm 4B Class of 2017 KSL
A BRIEF HISTORY OF COURT SYSTEM IN KENYA
In a democratic society where the governed relinquish a portion of their autonomy, the legal system is the guardian against abuses by those in position of power. Citizens agree to limitation on their freedom in exchange for peaceful co-existence and they expect that when conflict between citizens or between the state and citizens arise there is a place that is independent from undue influence, a place that is trustworthy, and that has authority over all parties to solve disputes peacefully and this place of refuge is the court.[1]
In Kenya like other nations in the continent of Africa before the European imperialists established (colonized, the African territories), the Africans traditional communities used the fora of justice at family shrines, churches, mosques. It also applied other alternative disputes resolution mechanisms that included reconciliation, mediation and arbitration. However they instituted the courts actions as the last resort because the people since time immemorial were aware of the fact that the court proceedings were naturally adversarial.[2]
Access to justice in Kenya was impeded by inadequate staff members, tortuous procedures, distance to courts as well as inefficiency and corruption. The office of the chief justice operated as a judicial monarch supported by the registrar of the high court, power and authority were highly centralized. Accountability mechanisms were weak and reporting requirement absent. The judicial institutions had weak structures, inadequate resources, diminished conference, deficient in integrity, weak public support and literally incapacitated to deliver justice.[3]
This made the people of Kenya to desire a judiciary that was not only fair but also just, impartial, independent and that would actively promote itself as accessible, friendly and affordable.[4]
Their desires were able to be met by the promulgation of the Constitution of Kenya 2010,since it not only recognizes access to justice as  the primary reason for which court system exist but also imposes on courts that   which is known as the overriding objection of judicial transformation. It introduced a decentralized courts system with the Supreme Court and the court of appeal having their own presidents and the high court having a principal judge as heads of the respective institution. It firmly by dint of Article 159(1) vests judicial authority in courts and tribunals established under the constitution and the principles guiding the courts set out under Article 159.[5]
In support of this, section 3A of the civil Procedure Act empowers every court in exercising their powers to make orders as may be necessary for the ends of justice and prevent abuse of powers of the court[6].This takes us to the main topic of the discussion, whereby we are going to look at the structure, composition and jurisdiction of courts in Kenya.

JURISDICTION
Jurisdiction is the power vested in the court by law to adjudicate upon, determine and dispose of a matter.[7] In trying to interrogate the source of the said power, the Supreme Court in Re the Matter of the Interim Independent Electoral Commission noted that, ‘assumption of jurisdiction by Courts in Kenya is a subject regulated by the Constitution, by statute law, and by principles laid out in judicial precedent.’[8] In so doing, the court further made reference to the case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Limited and observed that this case ‘establishes that jurisdiction flows from the law, and the recipient-Court is to apply the same, with any limitations embodied therein. Such Court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavours to discern or interpret the intentions of Parliament, where the wording of legislation is clear and there is no ambiguity.’[9]
Significance of Jurisdiction
In civil matters, jurisdiction has practical significance when a litigant must choose the appropriate court in which to proceed.[10] In criminal matters on the other hand, jurisdiction is significant in determining whether the court in which an accused person is tried has the power to do so.[11] Accordingly scholars have argued that the issue of jurisdiction is of importance to the person initiating litigation as it raises and answers the question; to which court should he address his claim?[12]
Jurisdiction is equally important for the court itself since it forms the basis for the court’s power to grant or to refuse the relief sought. In the Kenyan case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Limited[13], Justice Nyarangi explained the importance of jurisdiction in the following terms:
Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.



Consequences of Jurisdiction
Because of the important nature of jurisdiction, it has been held that a court of law must determine the question of jurisdiction upfront before embarking upon matters of the merits of the case.[14] Justice Nyarangi emphasized in this respect that ‘I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the Court seized of the matter is then obliged to decide the issue right away on the material before it.’[15] If the court determines that it has no jurisdiction, it downs the tools and must not proceed with the case any further. To proceed where there is no jurisdiction is a waste of time as the eventual decision will be of no consequence.[16] In Speaker of the Senate and another v Attorney General and another, the Supreme Court correctly observed that:
The consequence of a Court proceeding without jurisdiction is stated, in unambiguous terms, in Words and Phrases Legally Defined, Vol 3: 1 (at p. 113): “Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing.”[17]
It follows therefore that, if a court declines jurisdiction, then the application will be dismissed without reaching the merits of the case—and without the court granting the relief sought, even if the applicant would otherwise have been entitled to it.


Before adopting the above quoted words in the “Lilian S” case, the Court of Appeal in Mumo Matemu v Trusted Society of Human rights alliance and others observed that ‘[i]t is trite that the jurisdiction of any court provides the foundation for its exercise of judicial authority. As a general principle, where a court has no jurisdiction, it has no basis for judicial proceedings much less judicial decision or order.’[18]

THE SUPREME COURT OF KENYA
Establishment
The Supreme Court is established under article 163 of the constitution.[19] It is classified as one of the three superior court in Kenya.[20]
Composition
It consists of;
(a) The Chief Justice, who shall be the president of the court;
(b) The Deputy Chief Justice, who deputizes the Chief Justice and as the vice-president of the court;
(c) Five other judges
The Supreme Court is properly constituted for the purposes of its proceedings if it is composed of five judges.[21]
Jurisdiction
The Supreme Court has jurisdiction over the following;[22]
1. Exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of President arising under Article 140; in Raila Odinga v Independent Electoral & Boundaries Commission & 3 others [2013][23]    the court stated “The Court’s jurisdiction in the consolidated Petitions was not an issue for determination per se. That the parties chose to move the Court to determine the validity of the Presidential election was an indication that they had no doubts as to the Court’s jurisdiction. However, the gist of some of the prayers in the Petition, and of the submissions made in support, raised a question as to the nature and extent of the Court’s jurisdiction. It is clear that the Supreme Court’s jurisdiction in a Presidential election is both original and exclusive… No Court other than the Supreme Court has the jurisdiction to hear and determine disputes relating to an election for the office of President.   This jurisdiction, however, is not boundless in scope: it is circumscribed in extent and in time. Limited in extent, in that it relates only to an inquiry into the legal, factual and evidentiary questions relevant to the determination of the validity or invalidity of a Presidential election.”
2. Appellate jurisdiction to hear and determine appeals from the Court of Appeal and any other court or tribunal as prescribed by national legislation. This is illustrated by Yusuf Gitau Abdallah v Building Centre (K) Ltd & 4 others [2014].[24]  The Petitioner in this case had been acting in person in this matter from inception. He had his matter pending before the Industrial Court, a Court with the status of the High Court, but decided to approach the Supreme Court directly. The question was whether the Court had Jurisdiction to admit him or even hear him. The court stated “This matter falls outside the jurisdiction of the Supreme Court on both the ripeness doctrine and the venue doctrine. Even as the Court seeks to do justice, it cannot be lost to it that despite having a conscience, it is a court of law and not of mercy. It is also bound by the law and more so the Constitution which binds all. The Petitioner cannot be excused even on the pretext that he did not know this jurisdictional boundaries. A reading of the documents he has submitted to this Court shows that he describes himself inter alia as a printing consultant by profession with the ability to speak seven languages. Be it as it may, it is a legal principle that ignorance of the law is no defense. Hence the petitioner cannot with any iota of excuse claim he did not know this….Consequently, this matter is hereby struck out as it does not fall within the jurisdiction ambit of the Honorable Court. The Petitioner is directed to go and pursue his matter in the Industrial Court”.
3. Appeals lie from the Court of Appeal to the Supreme Court
 (a) As of right in any case involving the interpretation or application of this Constitution;
(b) In any other case in which the Supreme Court, or the Court of Appeal, certifies that a matter of general public importance is involved. General public importance is a contentious issue however the court established a test for public interest and importance in the case of Malcolm Bell v Daniel Toroitich Arap Moi & another [2013] [25]as follows
  1. for a case to be certified as one involving a matter of general public importance, the intending appellant must satisfy the Court that the issue to be canvassed on appeal is one the determination of which transcends the circumstances of the particular case, and has a significant bearing on the public interest;
  1. where the matter in respect of which certification is sought raises a point of law, the intending appellant must demonstrate that such a point is a  substantial one, the determination of which will have a significant bearing on the public interest;
  1.  such question or questions of law must have arisen in the Court or Courts below, and must have been the subject of judicial determination;
  1.  where the application for certification has been occasioned by a state of uncertainty in the law, arising from contradictory precedents, the Supreme Court may either resolve the uncertainty, as it may determine, or refer the matter to the Court of Appeal for its determination;
  1.  mere apprehension of miscarriage of justice, a matter most apt for resolution in [other] superior courts, is not a proper basis for granting certification for an appeal to the Supreme Court; the matter to be certified for a final appeal in the Supreme Court, must still fall within the terms of Article 163 (4)(b) of the Constitution;
  1.  the intending applicant has an obligation to identify and concisely set out the specific elements of “general public importance” which he or she attributes to the matter for which certification is sought;
  2. Determinations of fact in contests between parties are not, by themselves, a basis for granting certification for an appeal before the Supreme Court.
5. A certification by the Court of Appeal under general public importance may be reviewed by the Supreme Court, and either affirmed, varied or overturned. In Peter Ngoge v Ole Kaparo[26], Court thus stated:
“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.”
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 the matter of the principle of gender representation in the National Assembly and the Senate [2012][27]  The Advisory Opinion of the Court was sought on the following issues:
A.    Whether Article 81(b) as read with Article 27(4), Article 27(6), Article 27(8), Article 96, Article 97, Article 98, Article 177(1) (b), Article 116 and Article 125 of the Constitution of the Republic of Kenya require progressive realization of the enforcement of the one-third gender rule or requires the same to be implemented during the general elections scheduled for 4th March, 2013?
Speakers of the 47 County Assemblies v Commission on Implementation of the Constitution & 2 others [2016]  [28]The applicant, by its Reference dated 6th August 2014 (filed on 7th August, 2014), sought an Advisory Opinion, pursuant to Article 163(6) of the Constitution. The issues raised were as follows:
  1. whether a Constitutional Commission or an Independent Office can, by way of a Circular, regulate the internal affairs of a County Assembly, such as sittings of such an Assembly, or a County Government organ established under Article 176(1) of the Constitution of Kenya;
  2. Whether a member of a County Assembly enjoys immunity from civil or criminal proceedings for words spoken before, or matter brought against him/her in the National County Assembly? 
  3. What constitutes valid grounds for removal of a Speaker of a County Assembly?
B.    Whether an unsuccessful candidate in the first round of Presidential election under Article 136 of the Constitution or any other person is entitled to petition the Supreme Court to challenge the outcome of the first round of the said election under Article 140 or any other provision of the Constitution?”
7. The Supreme Court may decide on the validity of a declaration of a state of emergency, any extension of a declaration of a state of emergency and any legislation enacted, or other action taken, in consequence of a declaration of a state of emergency.[29]

  All courts, other than the Supreme Court, are bound by the decisions of the Supreme Court. The Supreme Court makes rules for the exercise of its jurisdiction.




THE COURT OF APPEAL
It can be defined as an appellate court subordinate only to the Supreme Court, it is established under Article 164(1) of the Constitution of Kenya 2010.The court of appeal consists of a number of judges being not fewer than 12 as may be prescribed by an Act of parliament.
It comprises of a president of the court of appeal who are elected by then judges of the court of appeal from among themselves. It is recognized as a superior court of record therefore it sets precedents, it has limited original jurisdiction in that it hears appeals from the high court. As a superior court, its decision is final except only in certain weighty cases that may call for and or involve the wise counsel of the Supreme Court.[30]
It can have original jurisdiction only in punishment for contempt of court, and when stating execution of orders of the high court. The procedure and practice of the court of appeal are regulated by the rules of court made by the Rules Committee constituted under the appellate Jurisdiction Act cap 9.
It also has power to determine case finally; order for trial; order for re-trial, frame issues for the determination of the high court receive additional evidence or order that it be taken by another court.
THE HIGH COURT
Establishment
            It is established under Article 165 of Constitution of the Republic of Kenya, 2010.
Composition
            The actual number of judges of the High Court, together with the manner of the Court’s administration and operation, is to be guided by an Act of Parliament. However the High Court is to have a Principal Judge elected by the judges of the High Court from among themselves.[31]
Jurisdiction[32]
The High Court shall have:
            a). Unlimited original jurisdiction in criminal and civil matters
            b). Jurisdiction to determine the question whether a right or fundamental freedom in the Bill of             Rights has been denied, violated, infringed or threatened;
            c). Jurisdiction to hear an appeal from a decision of a tribunal appointed under the          proposed Constitution to consider the removal of a person from office, except the tribunal to remove the             President from office
            d).Jurisdiction to hear any question respecting the interpretation of the Constitution        including the determination of the question whether any law is inconsistent with or in   contravention of the Constitution;
            f).The question whether anything said to be done under the authority of the Constitution or of any law is inconsistent with, or in contravention of, the Constitution; any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; and a question relating to conflict of national vs. county laws under Article 191.
            g).Any other jurisdiction, original or appellate, conferred on it by legislation.
            h). Any matter certified by the court as raising a substantial question of law under [b] or             [d]above shall be heard by an uneven number of judges, being not less than three,           assigned by the Chief Justice.
i). The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court. To this end, the High Court may call for the record of any proceedings before any subordinate court or person, body or authority as part of its duties under this clause, and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.
Jurisdiction Limitation
The High Court however, has got no jurisdiction over certain issues. These issues include:
            a). Issues reserved for the exclusive jurisdiction of the Supreme Court falling within the   jurisdiction of the Employment and Labor Relations Court  or the Lands and     Environment Court.

THE EMPLOYMENT AND LABOR COURT
Establishment
            Employment and Labor Relations Court in Kenya is envisioned by the constitution[33]. The substantive law containing its rules and procedures is the Employment and Labor Relations Court Act 2011. Its main purpose is settling employment and industrial relations disputes and the furtherance, securing and maintenance of good employment and labor relations in Kenya.
Jurisdiction
            The Act gives the court exclusive original and appellate jurisdiction to hear and determine all disputes referred to it in accordance with Article 162(2) of the Constitution of the Republic of Kenya, 2010 and the provisions of the Act or any other written law which extends jurisdiction to the court on matters relating to employment and labor relations, including disputes:[34]
            a). Relating to or arising out of employment between an employer and an employee
            b). between an employer and a trade union
            c). between an employers’ organization and a trade unions organization;
            d). between trade unions
            e). between employer organizations
            f). between an employers’ organization and a trade union
            g).between a trade union and a member thereof
            h). between an emp1oyer’s organization or a federation and a member thereof
            i). Concerning the registration and election of trade union officials
            j). Relating to the registration and enforcement of collective agreements.

THE ENVIRONMENTAL AND LAND COURT
Establishment
            The court is envisioned  in  the constitution[35]. The Environmental and Land Court Act 2011 establishes the rules and procedures of the environmental and lands court. It  gives  effect to Article 162(2)(b) of the Constitution of the Republic of Kenya, 2010; to establish a superior court to hear and determine disputes relating to the environment and the use and occupation of, and title to, land, and to make provision for its jurisdiction  functions and powers,  and for connected purposes.
 The Court shall be a superior court of record with the status of the High Court.
Composition
The Court shall sit-
(a) The Principal Judge; and
(b) Such number of Judges as may be necessary for the efficient and effective discharge of the functions of the Court.
Jurisdiction
            The Court shall have and exercise jurisdiction throughout Kenya and shall pursuant to the Act ensure reasonable and equitable access to its services in every county.[36]
The Court, which shall be a superior court with the status of the High Court, shall have jurisdiction throughout the Republic of Kenya to hear and determine disputes relating to the environment and the use and occupation of, and title to land.
 MAGISTRATE COURTS.
Establishment
The 2010 constitution provides for the establishment of magistrate courts.[37]
Composition
 Magistrate courts are duly constituted when held by a Chief Magistrate, Senior Principal, A Principal Magistrate and a Senior Resident Magistrate or Resident Magistrate.[38]
Jurisdiction
 Magistrate Courts have jurisdiction throughout the country to handle criminal in accordance with the Criminal Procedure Code[39] and civil cases depending on the pecuniary damages sought. The hierarchy of magistrate’s is as follows; Chief Magistrate, Senior Principal Magistrate, Principal Magistrate, Senior Resident Magistrate, Resident Magistrate and District Magistrate.
In Magistrate Courts, jurisdictions of civil cases entirely depend on the value of subject matter in dispute and are categorized as follows;
a.      Twenty million shillings for Chief Magistrate.
b.      Fifteen million shillings for Senior Principal Magistrate.
c.       Ten million shillings for Principal Magistrate.
d.      Seven million for Senior Resident Magistrate.
e.      Five million for Resident Magistrate.[40]
 In addition, Magistrate Courts have jurisdiction concerning claims under customary law.[41]Such as marriage, divorce, dowry and intestates succession.
COURTS MARTIAL
 The court martial is established under article 169 of the constitution. It has criminal jurisdiction over member of the Kenya Defense Forces; the army, navy and air force. Its rules, procedures and crimes to be tried are contained in the Kenya Defense Forces Act No 25 of 2012. Appeals from the courts martial are to the High Court of Kenya
KADHIS’ COURT
The kadhi’s court has been established under article 169 of the constitution. It is composed of a chief kadhi and other kadhi’s not less than three as may be prescribed under an act of parliament. The jurisdiction of a kadhi’s 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.
The parties must submit to the jurisdiction of the kadhi’s court. The jurisdiction and powers of the kadhi’s court are provided for by the Kadhis’ courts Act cap 11 laws of Kenya. The jurisdiction of the kadhi’s court does not limit the jurisdiction of the high court or subordinate courts in any proceedings which comes before it. This was illustrated in Succession cause no 301 of 2014(in the matter of S.P.B AND A.S.B)[42].The petitioners who are respectively widow and mother in-law of the deceased Muslim man had filed two proceedings before the High court petitioning for grant of representation to the estate of deceased.  The interested parties to this suit who are respectively a son and widow of the deceased under first marriage raised a primary objection on the jurisdiction of the high court and wanted the matter to be moved to the high court.  The issue before the court was whether high court had jurisdiction to entertain the matter of succession to the estate of the deceased Muslim or whether it is the kadhi’s court that has exclusive jurisdiction, and consequently, whether the court will order the transfer of the succession proceedings to the kadhi’s court for hearing and disposal. It was held that the jurisdiction of the high court in civil matters is unlimited by virtue of Article 165 of the constitution and that the kadhis’ court Act, cap 11 Laws of Kenya also acknowledges the jurisdiction of the high court in matters that come before it.
Other roles of kadhi courts include; officiating and registration of Islamic marriages, counselling and mediation between Muslim couples in marital disputes, adjudicating over divorce proceedings and the issuance of divorce certificates and administration of Muslim estate



COURT REGISTRIES
The registry is where all pleadings, supporting documents and all orders and court decisions are recorded and maintained.
The office receives pleadings from litigants for the purpose of processing and forwarding to the court.
They are managed by each court’s respective registrars and are headed by executive officers.
Its functions include:
a)      Custody and safekeeping of court records
b)      Collecting court fees and accounting for it
c)      Responding to inquiries regarding filing of court documents, fee schedules, cause lists etc.
Location
There are approximately 142 registries spread out across he countries court stations.
Working hours
They are normally open from Monday to Friday from 9.00 am-5.00pm. They are closed on weekends and public holidays.
CRITIQUE OF JUDICIAL STRUCURE
1)      Overlap of functions
The Supreme Court does have some overlapping functions with the court of appeal which is a weakness in the structure.
2)      Duplication of functions
Likewise, the Supreme Court and the high court share overlapping functions with regard to constitutional litigations. 



[1]Jusstice Alnashir  Visram,Role and  Responsibility of  courts under the constitution of kenya2010.
[2] Gabriel Lubale,Court System in Kenya
[3] Ole Naeku Timothy Tipila,The Hierachical  Structure of Courts and Inherent Powers and Discretion of Kenyan Subordinate Courts in Preventing Abuse of the  courts’ process in Criminal Proceeding Laws of  Kenya.
[4] Supranote1
[5] ibidi
[6] Ibid,cap 21 of the law Kenya
[7] Dr. Mutakha Kang’u, Jurisdiction and Competent Courts (2015)
[8] Re the Matter of the Interim Independent Electoral Commission [2011] eKLR para 29.
[9] Re the Matter of the Interim Independent Electoral Commission [2011] eKLR para 30.
[10] Supra n. 1
[11] Johan de Waal, Iain Currie and Gerhard Erasmus The Bill of Rights Handbook  (2000) Juta& Co Ltd at p 88.
[12] Sebastian Seedorf ‘Jurisdiction’ in Constitutional Law of South Africa (2011) Juta& Co LtdCh 4.
[13] Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Limited [1989] KlR 1
[14] Supra n. 1
[15] Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Limited [1989] KlR 1
[16] Supra n. 1
[17] Speaker of the Senate and another v Attorney General and another [2013] eKLR para 4.
[18] Mumo Matemu v Trusted Society of Human rights alliance and others [2013] eKLR para 33.
[19] The Constitution of Kenya 2010 Article 163
[20] The Constitution of Kenya 2010 Article 162
[21] Supra n 1
[22] Supra n1
[23] Raila Odinga v Independent Electoral & Boundaries Commission & 3 others [2013] eKLR www.kenyalaw.org last accessed 14/2/2017
[24] Yusuf Gitau Abdallah v Building Centre (K) Ltd & 4 others [2014] eKLR www.kenyalaw.org last accessed 14/2/2017
[25] Malcolm Bell v Daniel Toroitich Arap Moi & another [2013] eKLR Application 1 of 2013 www.kenyalaw.org last accessed 14/2/2017
[26]PETER O. NGOGE v FRANCIS OLE KAPARO & 4 OTHERS [2007] eKLR Misc Civ Appli 22 of 2004(OS)  www.kenyalaw.org last accessed 14/2/2017
[27] . In the matter of the principle of gender representation in the National Assembly and the Senate[2012]eklrwww.kenyalaw.org last accessed 14/2/2017
[28] Speakers of the 47 County Assemblies v Commission on Implementation of the Constitution & 2 others [2016] eKLR  www.kenyalaw.org last accessed 14/2/2017

[29] The constitution of Kenya 2010 Article 58(5)
[30] The Constitution of Kenya 2010 Article 164(2)(3)(a)
[31] The Constitution of Kenya 2010 Article 165
[32] Ibid

[33] The Constitution of Kenya 2010 Article 162(2)(a)
[34] Employment and Labor Relations court Act section 12
[35] The Constitution of Kenya 2010 Article 162(2)(b)
[36]  The Environmental and land Court Act No. 11 of 2011 Section 26
[37] The Constitution of Kenya 2010 Article 169 (1)  
[38]  The Magistrate’s Courts Act No 26 of 2015 Section 5
[39] Ibid Section 6
[40] Ibid section 7(1)
[41] Ibid section 7(3)
[42] Succession cause no 301 of 2014(in the matter of S.P.B AND A.S.B) www.klr.org last accessed 14/02/2017

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